Ellaga v Northern Territory of Australia

The Determination Area

1. The Determination Area is the land and waters described in Schedule A hereto and depicted on the map comprising Schedule B.
2. Native title exists in those parts of the Determination Area identified in Schedule C.
3. Native title does not exist in those parts of the Determination Area identified in Schedule D.
4. In the event of any inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule B, the written description shall prevail. The native title holders
5. The land and waters of the Determination Area comprise the whole or part of two estates, which are held respectively by the members of the following two estate groups: (a) the Murrunggun Kunakingka group; (b) the Guyal Bardi Bardi group. These persons, together with the Aboriginal people referred to in clause 7 hereof, are collectively referred to as 'the native title holders'.
6. Each of the estate groups referred to in clause 4 hereof includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof. These persons are collectively referred to as 'the estate group members'.
7. In accordance with traditional laws and customs, other Aboriginal people have rights and interests in respect of the Determination Area, subject to the rights and interests of the estate group members, such people being: (a) members of estate groups from neighbouring estates; (b) spouses of the estate group members.
8. Each of the estate groups referred to in clause 7(a) hereof includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof. The native title rights and interests
9. The native title rights and interests of the estate group members that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being: (a) the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1189; (e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct and to participate in the following activities on those areas: (i) cultural activities; (ii) cultural practices relating to birth and death, including burial rites; (iii) ceremonies; (iv) meetings; (v) teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs; (h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs; (i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas; (j) the right to be accompanied on to those areas by persons who, though not native title holders, are: (i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas; (ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; (iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas; (k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof. These native title rights and interests do not confer on the estate group members possession, occupation, use and enjoyment of the Determination Area, to the exclusion of all others.
10. The native title rights and interests of the native title holders referred to in clause 7 hereof that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being: (a) the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1189; (e) the right to camp on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof; These native title rights and interests do not confer on the native title holders referred to in clause 7 hereof possession, occupation, use and enjoyment of the Determination Area, to the exclusion of all others. Other interests in the Determination Area where native title exists
11. The nature and extent of other interests in those parts of the Determination Area where native title exists are the interests, created by the Crown or otherwise, as follows: (a) in relation to NT portion 6365, the interests of Ben Tapp under Perpetual Pastoral Lease 1189; (b) in relation to NT portion 5144, valid rights of usage for the passage of travelling stock; (c) in relation to NT portion 5782, the interests of members of the public arising from rights of access to and use of the Doyle's Ridge Aviation Reserve; (d) the rights and interests of Telstra Corporation Limited: (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (A) to inspect land; (B) to install and operate telecommunications facilities; (C) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; and (D) to occupy its Mayfield Optic Fibre Regenerator Site in NT portion 4212; (iii) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties; and (iv) under any licence, access agreement or easement relating to its telecommunications facilities in the Determination Area; (e) in relation to NT portion 6365, the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in the pastoral lease, identified in ss 38(2) - (6) of the Pastoral Land Act 1992 (NT); (f) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (g) rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties; (h) the interests of the proprietors of NT portion 5130 pursuant to Access Easement instrument No. 382195 dated 29 August 1997; (i) the interests of persons to whom valid and validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or (ii) otherwise conferred by statute; (j) the following interests granted under the Mining Act (NT), depicted in Schedule E: (i) Exploration Licence Title No. 27473 granted on 18 February 2010; (ii) Exploration Licence Title No. 27877 granted on 27 July 2010; (iii) Exploration Permit Title No. 98 granted on 4 February 2004; (iv) Exploration Licence Title No. 28373, granted 6 September 2011;
12. To the extent, if at all, that the exercise of the native title rights and interests referred to in clauses 9 and 10 conflicts with the exercise of the rights and interests of the persons referred to in clause 11, the rights and interests of the persons referred to in clause 11 prevail over, but do not extinguish, the native title rights referred to in clauses 9 and 10. Other matters
13. There are no native title rights and interests in: (a) minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT)); (b) petroleum (as defined in s 5 of the Petroleum Act (NT)); (c) prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)), in the Determination Area.
14. The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia.
15. The native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Schedule A Description of Determination Area The Determination Area comprises the following areas of land:
16. NT portion 6365, being land the subject of Perpetual Pastoral Lease 1189;
17. NT portion 1432, being land the subject of a grant of estate in fee simple to Telstra Corporation Limited;
18. NT portion 4212, being unalienated Crown Land;
19. NT portion 5782, being the Doyles Ridge Aviation Reserve;
20. NT portion 5144, being land comprising part of the Birdum Stock Route; Schedule B Map of Determination Area Schedule C Areas where native title exists The areas of land and waters in respect of which the native title rights and interests in clauses 9 and 10 apply are:
21. NT portion 6365, being land the subject of Perpetual Pastoral Lease 1189, except those parts thereof referred to in Schedule D;
22. NT portion 4212, being unalienated Crown Land;
23. NT portion 5782, being the Doyles Ridge Aviation Reserve, except those parts thereof referred to in Schedule D;
24. NT portion 5144, being land comprising part of the Birdum Stock Route, except those parts thereof referred to in Schedule D. Schedule D Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters:
25. NT portion 1432, being land the subject of freehold estate granted to Telstra Corporation Limited;
26. Those parts of the Determination Area covered by public works (including adjacent land or waters as defined in section 251D of the Act) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date, including but not limited to: (a) public roads, whether rural roads, arterial roads or national highways and associated infrastructure; (b) community and pastoral access roads which are not otherwise public roads; (c) gravel pits adjacent to the roads referred to at paragraphs (a) and (b) hereof used to maintain those roads; (d) access roads or tracks to the public works referred to in this clause; (e) Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads; (f) river and rain gauges; (g) transmission and distribution water pipes and associated infrastructure; (h) sewer pipes, sewer pump stations and associated infrastructure; (i) electricity transmission lines, towers, poles and associated infrastructure; and (j) bores, squatters tanks, constructed stock watering points and associated infrastructure within stock routes and stock reserves.
27. In relation to NT portion 6365, those parts of the Determination Area covered by pastoral improvements including but not limited to: (a) a homestead, house, sheds and buildings; (i) 1 x homestead Complex; (ii) 3 x sheds; (iii) 2 x two bedroom guest quarters; and (iv) 1 x 5 bedroom men's quarters; (b) bores including: (i) 2 Homestead bores; (ii) A=35/74 bore; (iii) Bulwaddy bore; (iv) C.W. bore; (v) Camp Trailer bore; (vi) Corkwood bore; (vii) Crab bore; (viii) Dave's bore; (ix) Frank's bore; (x) Frank's No. 2 bore; (xi) Giles bore; (xii) Maryfield No. 3 bore; (xiii) Maryfield No. 4 bore; (xiv) No Crabs Here bore; (xv) No. 1/100 bore; (xvi) No. 2 bore; (xvii) No. 3 bore; (xviii) No. 4 bore; (xix) No. 5 bore; (xx) Purdy's bore; (xxi) Schubert No. 1 bore; (xxii) Schubert No. 2 bore; (xxiii) Schubert No. 3 bore; (xxiv) Schubert No. 4 bore; (xxv) Schubert No. 5 bore; (xxvi) Schubert No. 6 bore; (xxvii) Schubert No. 7 bore; (xxviii) Schubert No. 8 bore; (xxix) Sink Hole No. 3; and (xxx) Wallet bore; (c) turkey nests located at the following bores including: (i) Corkwood bore; (ii) C.W. bore; (iii) turkey nests x 2 at Frank's bore; (iv) No. 2 bore; (v) No. 3 bore; (vi) No. 6 bore; (vii) No. 7 bore; (viii) No. 8 bore; (ix) No. 9 bore; (x) Red Corner bore; and (xi) Wallet bore; (d) squatters tanks including: (i) tanks x 4 located at the homestead; (ii) tanks x 3 located 30kms East of homestead; (iii) tank located at Kadachi bore; (iv) tanks x 3 located at Keith's bore; (v) tank located at No. 4 bore; (vi) tanks x 3 located at Purdy bore; and (vii) tanks x 3 located at Station bore; (e) constructed dams and/or constructed stock watering points including: (i) Bull Waddy bore dam; (ii) Dams x 3 at No. 5 bore; and (iii) Purdy bore dam; (f) stockyards including: (i) C.W. Yards; (ii) Keith's Yards; and (iii) Maw Yards; (g) highway airstrips and trapyards. The areas described by 3(a) - (g) comprise land on which the improvements have been constructed prior to the date of this determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements. Schedule E Map of interests granted under the Mining Act (NT) IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 18 of 2010

BETWEEN: BARNEY ELLAGA (ON BEHALF OF THE MURRUNGGUN KUNAKINGKA GROUP AND THE GUYAL BARDI BARDI GROUP)

JUDGE: LANDER J DATE: 27 JUNE 2012 PLACE: HISTORIC NEWCASTLE WATERS TOWNSHIP

REASONS FOR JUDGMENT 1 This application was filed on 12 August 2010 by the applicant seeking recognition of native title rights and interests over the land and waters within the bounds of the Maryfield Pastoral Lease (Perpetual Pastoral Lease 1189) in the Northern Territory ("Application"). 2 The application is brought on behalf of the members of land holding groups associated with two estate groups: the Murrunggun Kunakingka group and the Guyal Bardi Bardi group. It is one of eleven applications heard together because of their geographical proximity. 3 On 20 June 2012, the applicants filed a Minute of Proposed Consent Determination pursuant to s 87 of the Native Title Act (1993) (Cth) ('Native Title Act'). That Minute is supported by the parties' Joint Submissions and a Statement of Agreed Facts also filed on that day. Given that one of the objectives of the Native Title Act is resolution of claims by agreement, it is appropriate that this application and those related to it have arisen out of negotiations between the parties and have resulted in the parties agreeing to the terms of a determination of native title. 4 Section 87 of the Native Title Act relevantly provides as follows: Application (1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66: (a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to: (i) the proceedings; or (ii) a part of the proceedings; or (iii) a matter arising out of the proceedings; and (b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court. … Agreement as to order (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Agreement as to part of proceedings (3) If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates. … (5) Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title. 5 The criteria identified in s 87 were summarised by Reeves J in Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia [2011] FCA 766 at [4]: The provisions of s 87 of the Act allow the Court to make a determination of native title by consent over an area of land and waters covered by a native title determination application without holding a hearing where certain conditions are met. These conditions are: 1. the period specified in the notice given under s 66 of the Act has expired (s 87(1)); 2. the parties have reached agreement on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); 3. the terms of that agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)); 4. the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and 5. it appears to the Court to be appropriate to make the order sought (ss 87(1) and 87(2). 6 What the Court is required to focus upon therefore is the process of the making of the agreement between the parties and whether the orders sought are appropriate. North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]: The [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. 7 It is not necessary for the Court to embark upon its own inquiry as to the merits of the claims made in the application for the Court to be satisfied that the orders sought are supportable according to law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J; Wavehill on behalf of the Ngapurrpinkakuyarra Group v Northern Territory of Australia [2007] FCA 588 at [3] per Mansfield J. 8 That does not mean that the Court will not look at the evidence before it to satisfy itself that the parties, particularly the Northern Territory on behalf of the community, is acting in good faith and rationally: Munn on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [30] per Emmett J; Roberts on behalf of the Najig and the Guyanggan Nganwirdbird Groups v Northern Territory of Australia [2012] FCA 223 at [6] per Finn J. 9 In the end result the Court must be satisfied for the purpose of exercising its jurisdiction under the Native Title Act that an order in the terms proposed by all the parties to the proceedings would be within the power of the Court: s 87(1)(c). 10 The conditions of s 87 of the Native Title Act have been satisfied in this case. In particular: 1. the period specified in the notice under s 66 ended on 2 February 2011; 2. the parties have reached agreement as to the terms of a determination; 3. the Minute of Proposed Consent Determination records those agreed terms; 4. an order consistent with the terms of the Minute would be within the power of the Court because: (a) the application is valid and made in accordance with s 61 of the Act; (b) the application is for a determination of native title over an area for which there is no approved determination of native title (s 13(1)(a)); and (c) the terms of the Minute comply with sections 94A and 225 of the Act. 5. It is appropriate that the Court make the orders sought because: (i) all the parties are legally represented; (ii) the Northern Territory as First Respondent obtained searches of land and mining tenure and other relevant interests to determine the extent of "other interests" within the proposed Determination Area and made those available to all parties; (iii) Ben Tapp, the holder of Perpetual Pastoral Lease 1189, provided all parties with a list of pastoral improvement on Perpetual Pastoral Lease 1189 which affect native title; (iv) the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described in the orders to be made today; (v) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Act; (vi) the Northern Territory as 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 Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances; and (vii) based on this and the terms of the proposed order, it is apparent that there is a free and informed agreement between the parties. 11 In relation to the assessment process, I note that: 1. On 1 September 2009 the Applicant filed a "Report of Native Title Interests - Hayfield, Vermelha, Maryfield, Kalala and Forrest Hill Pastoral Leases and the Town of Daly Waters" and "Genealogies - Hayfield, Vermelha, Maryfield, Kalala and Forrest Hill Pastoral Leases and the Town of Daly Waters" ("Connection Material"). The Connection Material was prepared by Robert Graham, an anthropologist engaged on behalf of the Applicant to address the Northern Territory's Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009. 2. The Connection Material was considered by the First Respondent. The First Respondent sought advice about the Connection Material from anthropologist Basil Sansom. The First Respondent raised various contentions about the Connection Material with the Applicant. 3. The Applicant and the First Respondent subsequently met and/or exchanged correspondence in relation to the First Respondent's contentions on the Connection Material on a number of occasions. In consequence of this, the Application was filed and the former application was withdrawn. 4. Ultimately, the Applicant and the First Respondent reached agreement that the native title claim group named in Schedule A of the Application and in the Connection Material are the persons who hold the claimed native title rights and interests in the Determination Area. 12 In relation to issues of extinguishment of native title, I note that: 1. On 26 September 2008 the First Respondent filed a "Tenure Report" which contained an analysis of the extinguishment of native title in the determination area based upon the grant of tenure. 2. On 10 October 2008 the First Respondent filed a "Public Works Report" which contained an analysis of the extinguishment of native title in the Determination Area based upon the establishment of public works. 3. On 30 April 2009 Ben Tapp, the holder of Perpetual Pastoral Lease 1189, filed an "Extinguishing Tenure Report regarding Pastoral Improvements on Maryfield Station". 4. On 1 May 2009 the Second Respondent filed a "Report on Extinguishing Tenure and Public Works in respect of: Vermelha PPL 1174, Maryfield PPL 1189, Forrest Hill PPL 1190, Kalala PPL 1064, Hayfield PPL 1135, Tanumbirini PPL 1060, Ucharonidge PPL 1072, Mungabroom PPL 1018, Broadmere PPL 1046". 5. On 6 August 2009 the Applicant filed the following documents: (a) "Notice Concerning Pastoral Improvements"; (b) "Notice Concerning Telstra Improvements"; and (c) "Applicants' Tenure and Public Works Report including Contentions". 6. The Applicant and the First Respondent ("Parties") subsequently met and/or exchanged correspondence in relation to the Parties' various contentions on extinguishment on a number of occasions. 7. Ultimately, the Parties reached agreement as to those parts of the Determination Area in which native title does and does not exist. 13 Finally, I note that for the purposes of s 56 of the Act, the native title is not to be held on trust and that the consent orders provide appropriately for a prescribed body corporate to be nominated for the purposes of sections 57(2) and (3) of the Native Title Act.

Conclusion 14 The co-operative approach of the parties and their legal practitioners has culminated in today's consent determination. It is important to note that the orders sought and being made today are not orders granting native title rights and interests to the applicants, but recognising the native title holders status as such. The recognition of what is an ancient connection with the land the subject of this determination is a very significant matter and the parties and their legal advisors are to be congratulated on working co-operatively to bring it about. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.