Foster on behalf of the Jalajirrpa, Kunapa and Pirrtangu Groups v Northern Territory of Australia - [2020] FCA 1548 - FCA 2020 case summary — Zoe

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Foster on behalf of the Jalajirrpa, Kunapa and Pirrtangu Groups v Northern Territory of Australia

[2020] FCA 1548

Federal Court of Australia|2020-10-28|Before: White J

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Source facts

Court

Federal Court of Australia

Decision date

2020-10-28

Before

White J

Catchwords

NATIVE TITLE - consent determination - requirements under ss 87 and 87A of the Native Title Act 1993 (Cth) - agreement of all parties - determination of native title by consent.

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - requirements under ss 87 and 87A of the Native Title Act 1993 (Cth) - agreement of all parties - determination of native title by consent.

Judgment (22 paragraphs)

[1]

A. On 31 January 2001, the Second Applicant made a native title determination application over land and waters which were the subject of several future act notices issued under s 29 of the Native Title Act 1993 (Cth) (the Act), which application is designated NTD6005/2001. The application area in NTD6005/2001 covers part of the Banka Banka East Pastoral Lease (Perpetual Pastoral Lease No. 1204). B. On 19 December 2017, the First Applicant made a native title determination application over the land and waters within the bounds of the Banka Banka East Pastoral Lease (Perpetual Pastoral Lease No. 1204), designated NTD60/2017 (the Application). C. On 11 August 2020, the Court made orders pursuant to s 67 of the Act which required NTD60/2017 and that portion of NTD6005/2001 which overlaps portion of NTD60/2017 to be dealt with in one proceeding (the Proceeding) being NTD60/2017. D. The Applicants and the Respondents to the Proceeding (the Parties) have reached agreement as to the terms of a proposed determination of native title in relation to the land and waters covered by the Application. E. Pursuant to ss 87(1)(a)(i), 87(1)(b), 87A(1)(b) and 87A(2) of the Act, the Parties have filed with the Court their signed agreement in writing (the Determination). The external boundaries of the area subject to the Determination (the Determination Area) are described in Schedule A of the Determination and depicted on the map comprising Schedule B of the Determination. F. Pursuant to ss 87, 87A and 94A of the Act, 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. G. The Parties acknowledge that the effect of making the Determination is that the members of the native title claim group in NTD60/2017, in accordance with the traditional laws acknowledged and the traditional customs observed by them, be recognised as the native title holders for the Determination Area as provided by the Determination. H. The Parties request that the Court hear and determine the Proceeding in accordance with their agreement. BEING SATISFIED that a determination of native title in the terms of the Determination in respect of the Proceeding is within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87 and 87A of the Act and by the consent of the Parties:

[5]

The native title rights and interests of the estate group members referred to in clause 5 in relation to those parts of the Determination Area identified in Schedule C, being an area where there has been partial extinguishment of native title, are the rights: (a) to access, remain on and use the areas; (b) to access and to take for any purpose the resources of the areas; and (c) to protect places, areas and things of traditional significance.
The native title rights and interests of the persons referred to in clause 7 above in relation to those parts of the Determination Area identified in Schedule C, being an area where there has been partial extinguishment of native title, are the rights: (a) to access, remain on and use the areas; and (b) to access the resources of the areas.
The native title rights and interests do not confer on the native title holders: (a) possession, occupation, use and enjoyment of those parts of the Determination Area identified in Schedule C to the exclusion of all others; (b) any right to control the access to and use of those parts of the land and waters of the areas or their resources; (c) any right to access or take: (i) water captured by the holders of Perpetual Pastoral Lease No. 1204; or (ii) resources that are the private or personal property of another, including but not limited to: A. infrastructure or fixtures; B. chattels, equipment, machinery or supplies; C. animals, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal, that are the private or personal property of another; and D. plants, crops and grasses that are the private or personal property of another.
The native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the native title holders; and (b) the laws of the Northern Territory of Australia and the Commonwealth of Australia.
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)); or (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.

[17]

WHITE J: 1 This judgment contains the Court's reasons for acceding to the request of the parties that it make a determination of native title over the land and waters within the boundaries of the Banka Banka East Pastoral Lease (Perpetual Pastoral Lease No. 1204) in the Northern Territory. 2 The determination is made on two underlying applications for the determination of native title. 3 The principal application, although the second in time, is NTD60/2017 which was filed by the first applicant on 19 December 2017. This application covers all of the land and waters within the Banka Banka East Pastoral Lease, this being an area of approximately 1,901 km2. 4 An earlier application for determination of native title over part of the area of the Banka Banka East Pastoral Lease had been filed by the second applicant on 31 January 2001 (NTD6005/2001). It was a "polygon" application because it sought a determination of native title over areas of land and waters which were the subject of future act notices issued under s 29 of the Native Title Act 1993 (Cth) (the Act). 5 On 11 August 2020, the Court ordered, pursuant to s 67 of the Act, that the application in NTD60/2017 and that part of NTD6005/2001 which covered part of the Banka Banka East Pastoral Lease (Banka Banka Polygon Part A) be dealt with together. 6 The proposed consent determination will resolve the application in NTD60/2017 in its entirety. The parties seek the determination in respect of NTD60/2017 under s 87 of the Act. 7 The proposed consent determination will resolve NTD6005/2001 in part only, being the part comprised of Banka Banka Polygon Part A. The parties seek the determination in respect of that part of NTD6005/2001 under s 87A of the Act. 8 The applications which are the subject of this judgment have formed part of a group of applications (known as the "Banka Banka Group") which have travelled together in the Court. The Banka Banka Group also includes the applications for determinations of native title over the Banka Banka West, Powell Creek and Helen Springs Pastoral Leases. The Court is hearing and determining applications for consent determinations over the land and waters covered by those Pastoral Leases simultaneously with the present application. Some of the anthropological and other material on which the applicants relied was common to several of the applications. The Court is providing separate (albeit similar) judgments in respect of each. As indicated at the commencement of these reasons, this judgment concerns the Banka Banka East Pastoral Lease. 9 The persons who comprise the applicant in NTD60/2017 are Tony Foster, Annie Morrison, Harry Morrison, Gordon Noonan, Ian Waistcoat and Lennie Williams. They bring the application on behalf of the Jalajirrpa estate group, the Kunapa estate group, and the Pirrtangu estate group. 10 The persons who comprise the applicant in NTD6005/2001 are Archie Allen, Leo Dixon, Day Day Frank, Marc Johnny, Elizabeth Johnson, Harry Morrison, Gordon Noonan, Henry Norris and Dianne Stokes. They bring the application on behalf of the Kunapa, Kurtinja and Mangirriji Peoples.

[18]

The Court's power 11 The Court's power to make a determination of native title derives from Pt 4 of the Act, which includes ss 87 and 87A. A number of matters bear on the exercise of that power. In addition to complying with s 94A, the Court must be satisfied that it has a valid application before it; that there has not been any previous determination made in respect of the proposed determination area (s 68); and that the determination does not overlap the area of another application (s 67(1)). 12 Each of these conditions is satisfied in the present case. 13 Section 87 of the Act provides (relevantly): 87 Power of Federal Court if parties reach agreement 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. Power of Court (1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with: (a) whichever of subsection (2) or (3) is relevant in the particular case; and (b) if subsection (5) applies in the particular case - that subsection. 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). … 14 Section 87A of the Act provides (relevantly): 87A Power of Federal Court to make determination for part of an area Application (1) This section applies if: (a) there is a proceeding in relation to an application for a determination of native title; and (b) at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and (c) all of the following persons are parties to the agreement: (i) the applicant; (ii) each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made; .. (v) each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made; … (d) the terms of the proposed determination are in writing and signed by or on behalf of each of those parties. Proposed determination may be filed with the Court (2) A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court. Certain parties to the proceeding to be given notice (3) The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. Orders may be made (4) The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that: (a) an order in, or consistent with, the terms of the proposed determination would be within its power; and (b) it would be appropriate to do so. Note: As the Court's order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders). … 15 Section 87 empowers the Court to make a determination of native title if, after the end of the period specified in the notice pursuant to s 66, the parties reach agreement and file their signed agreement with the Court. The Court must, however, be satisfied that an order in, or consistent with the agreed terms, is within its powers. 16 Those requirements are satisfied in the present case. 17 So also are the requirements of s 87A(1)(a), (b) and (c) in respect of the area covered by the Banka Banka Polygon Part A area. 18 A marked up copy of the parties' agreement containing the proposed determination of native title and signed by the respective solicitors for the applicants, the Northern Territory and OM (Manganese) Ltd (the second respondent) has been filed with the Court. 19 Section 94A of the Act requires that an order of this Court by which a determination of native title is made set out details of the matters mentioned in s 225. Section 225 provides: 225 Determination of native title 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 or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 20 The expression "native title rights and interests" appearing in s 225(b) is defined in s 223(1) of the Act as follows: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. …

[19]

The Court's approach 21 Both ss 87(1A) and 87A(4) require the Court to be satisfied that it is appropriate to make the proposed determination. 22 It is now established that the Court may make a consent determination without conducting a hearing in the same manner in which it would if the application was contested. Nor is the Court required to receive all the evidence which it would on a contested application. Instead, providing that the Court is satisfied of certain matters, it may give effect to the parties' agreement. Doing so gives effect to a policy evident in the Act, and well recognised in the decisions of this Court, of encouraging parties to applications for the determination of native title to reach agreement with respect to the claims and thereby to avoid the necessity for determinations following formal Court hearings. 23 It is sufficient for this purpose to refer to King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 in which Keane CJ said: [19] More recently, the [C]ourt has been prepared to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the [C]ourt reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed … 24 Consequently, on applications of the present kind, the Court does not routinely embark on its own inquiry into the merits of the claim in order to be satisfied that the orders sought are supportable and are in accordance with the law. Instead, as the reasons of Keane CJ indicate, the Court places particular reliance on the agreement of the parties and on the State or Territory concerned discharging appropriately its responsibility in the public interest of undertaking a proper assessment of the application. 25 Nevertheless, when considering an application for the making of a consent determination in the manner discussed in King v State of SA, the Court does have regard to a number of matters. It does so because a determination of native title will bind the community generally and not just the parties to the proceeding: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229, (2001) 115 FCR 109 at [22]; Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. 26 Further, as was noted by Mortimer J in Freddie v Northern Territory [2017] FCA 867, the proprietary nature of the rights declared indicates that the Court should be satisfied that the determination is stated with appropriate clarity and, in particular, that the claim area, the nature of the native title rights and interests and the manner in which other proprietary interests may be affected, are appropriately defined. 27 The Court is also concerned to know that the parties' consent to the proposed determination is both free and informed and that there is sound and rational basis for the consent of the respondents to the application.

Foster on behalf of the Jalajirrpa, Kunapa and Pirrtangu Groups v Northern Territory of Australia

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