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

1. There be a determination of native title in terms of the Determination set out below.
2. The native title is not to be held on trust.
3. The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC be appointed as the prescribed body corporate for the purposes of s 57(2) of the Act in respect of the area the subject of the Determination.
4. There be no order as to costs.
5. There be liberty to apply to establish the precise location and boundaries of public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Schedule D of this Determination.

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 will prevail.

The native title holders 5. The land and waters of the Determination Area comprise the whole or part of 3 estates, which are held respectively by the members of the following estate groups: (a) the Jalajirrpa estate group; (b) the Kunapa estate group; and (c) the Pirrtangu estate group. These persons, together with the Aboriginal people referred to in clause 7, are collectively referred to as the "native title holders". 6. Each of the estate groups referred to in clause 5 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; or (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) above. These persons are collectively referred to as the "estate group members". 7. In accordance with the traditional laws acknowledged and the traditional customs observed by the estate group members, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being: (a) members of estate groups from neighbouring estates; and (b) spouses of the estate group members. 8. Each of the estate groups referred to in clause 7(a) 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; or (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) above.

9. 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.
10. 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.
11. 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.
12. 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.
13. 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.

14. Without limiting the native title rights and interests described in clauses 9 and 10 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clause 9 enable the estate group members referred to in clause 5 to: (a) travel over, move about and access those areas; (b) hunt and fish on the land and waters of those areas; (c) gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) take and to use the natural water on those areas, but this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease No. 1204; (e) live and camp on the areas, and to erect shelters and other structures on those areas; (f) light fires for domestic purposes; (g) conduct and 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 traditional significance; (h) maintain and protect sites and places on those areas that are of traditional significance; (i) be accompanied onto the land and waters 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 those areas; (ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and (iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas.

15. The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows: (a) in relation to NT portion 7049, the rights and interests of the holder of Perpetual Pastoral Lease No. 1204; (b) the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples in Perpetual Pastoral Lease No. 1204 made by s 38 of the Pastoral Land Act 1992 (NT); (c) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (d) 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; (e) the rights to water lawfully captured by the holders of other interests; (f) the rights and 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; (g) the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT) and the Petroleum Act 1984 (NT), depicted in Schedule E: (i) Exploration Permit Title No. 169 granted on 4 April 2013; and (ii) Exploration Licence Title No. 31665 granted on 3 August 2017.

Relationship between the native title and other interests

16. The other rights and interests referred to in clause 15, and the doing of an activity in giving effect to them or of an activity required or permitted by them, prevail over but do not extinguish the native title rights and interests referred to in clauses 9 and 10, and the existence and exercise of the native title rights and interests do not prevent the carrying on of any such activity.

17. In this Determination, unless the contrary intention appears: "the Act" means the Native Title Act 1993 (Cth); "land" and "waters" respectively have the same meanings as in the Act; "resources" for the purposes of clauses 9 and 10 of this Determination does not include minerals, petroleum and prescribed substances; "the Commonwealth" means the Commonwealth of Australia; and "the Northern Territory" means the Northern Territory of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Description of Determination Area The Determination Area comprises the following areas of land:

1. NT Portion 7049, being land the subject of Perpetual Pastoral Lease No. 1204.

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:

1. NT Portion 7049, being land the subject of Perpetual Pastoral Lease No. 1204 except those parts thereof referred to in 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:

1. Those parts of the Determination Area covered by public works as defined in s 253 of the Act (including adjacent land or waters as defined in s 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; (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; and (i) electricity transmission lines, towers, poles and associated infrastructure.

Map of interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT)

Parties NTD 60 of 2017 First Application Banka Banka East Pastoral Lease (NTD 60/2017) First Applicant: Tony Foster Second Applicant: Annie Morrison Third Applicant: Harry Morrison Fourth Applicant: Gordon Noonan Fifth Applicant: Ian Waistcoat Sixth Applicant: Lennie Williams First Respondent: Northern Territory of Australia Second Respondent: OM (Manganese) Ltd

Second Application Banka Banka Part A (NTD6005/2001) First Applicant: Archie Allen Second Applicant: Leo Dixon Third Applicant: Day Day Frank Fourth Applicant: Marc Johnny Fifth Applicant: Elizabeth Johnson Sixth Applicant: Harry Morrison Seventh Applicant: Gordon Noonan Eighth Applicant: Henry Norris Ninth Applicant: Dianne Stokes Respondent: Northern Territory of Australia

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.

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. …

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.

The evidence 28 The parties have provided the Court with the following material in support of the application for the consent determination: (a) the witness statement of Ian Waistcoat Jappanangka of 7 September 2017; (b) the witness statement of Josephine Grant Nappangarti dated 9 September 2017; (c) the anthropological report of Susan Donaldson dated 11 September 2017; (d) the anthropological report of Susan Donaldson dated 22 September 2017; (e) the affidavit of Martyn Gray made 21 August 2020; and (f) a statement of joint agreed facts between the applicants and of the first respondent filed on 24 September 2020. 29 In addition, the parties have provided joint written submissions by the applicants and the first respondent.

Consideration 30 Having reviewed the material provided by the parties, I am satisfied that there is a sound rational basis for the consent by the Northern Territory to the determination. It is very evident that the Territory has subjected the material provided by the applicants to a rigorous assessment. The anthropological reports by Ms Donaldson have been subject to review by Emeritus Professor Basil Sansom in relation to the Banka Banka East application as occurred in relation to those same reports in relation to the areas of the other adjoining Pastoral Leases. 31 The native title rights and interests for which the determination provides are of a kind which has been recognised by this Court in other determinations. They are also of a kind considered by the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422. The statement of the native title rights and interests in the proposed determination satisfies the requirements of s 225(b) of the Act. 32 The native title holders are identified in cll 5-8 of the determination. As already noted, the native title holders are the members of the following estate groups: (a) the Jalajirrpa estate group; (b) the Kunapa estate group; and (c) the Pirrtangu estate group. 33 The criteria for membership of the respective estate groups are set out in cll 6 and 8 of the proposed determination. 34 The determination area is defined in cll 1 and 2. Clause 3 indicates the areas in which it is agreed that native title does not exist. 35 The "other interests" to which s 225(c) refers, are identified in cl 15 of the determination. Clause 16 provides for the relationship between the other rights and interests and the determined native title rights and interests, as required by s 225(d).

General 36 There are no identified circumstances which would indicate that the making of the determination in the terms proposed by the parties is inappropriate. 37 All parties have had independent legal advice throughout the negotiation of the consent determination. There is no reason for the Court to suppose that a lack of legal representation has caused disadvantage to any party. 38 Order 2 provides that the native title is not to be held on trust. 39 Order 3 provides that the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC be appointed as the prescribed body corporate for the purposes of s 57(2) of the Act in respect of the determination area. It is to perform the functions outlined in s 57(3). 40 Having regard to the matters which I have reviewed above, I am satisfied that it is appropriate to give effect to the parties' agreement and thereby to the policy of the Act to which I referred earlier. 41 In doing so, I note that the order of this Court will not amount to a grant of native title to the estate holders. The order is instead a public and formal recognition that the native title rights and interests of the estate holders exist, and have always existed, at least since European settlement. 42 For these reasons, I make orders in the terms proposed by the parties. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.