Foster on behalf of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups v Northern Territory of Australia - [2020] FCA 1551 - FCA 2020 case summary — Zoe

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Foster on behalf of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups v Northern Territory of Australia

[2020] FCA 1551

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 (23 paragraphs)

[1]

A. On 31 January 2001, the Second Applicant made a native title determination application over the 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 was designated NTD6005/2001. The application area in NTD6005/2001 covers part of the Helen Springs Pastoral Lease (Perpetual Pastoral Lease No. 1001). B. On 21 May 2001, the Third Applicant made a native title determination application over the land and waters which were the subject of other future act notices issued under s 29 of the Act, which application was designated NTD6038/2001. The application area in NTD6038/2001 covers part of the Helen Springs Pastoral Lease (Perpetual Pastoral Lease No. 1001). C. On 8 September 2011, the First Applicant made a native title determination application over all the land and waters within the bounds of the Helen Springs Pastoral Lease (Perpetual Pastoral Lease No. 1001), which was designated NTD32/2011 (the Application). D. On 11 August 2020, the Court made orders pursuant to s 67 of the Act amalgamating into one proceeding NTD32/2011 and those parts of NTD6005/2001 (Banka Banka Polygon Part C) and NTD6038/2001 (Powell Creek Polygon Part B) which overlap NTD32/2011 (the Proceeding). E. The Applicants and the Respondents (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. F. 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. G. 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. H. The Parties acknowledge that the effect of making the Determination is that the members of the native title claim group in NTD32/2011, 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. I. 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 areas 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 areas 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. 1001; 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.

[7]

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 1512, the rights and interests of the holder of Perpetual Pastoral Lease No. 1001; (b) in relation to those parts of NT Portions 4282 and 5149 comprising part of the Barkly and North-South Stock Routes respectively contained within the boundaries of NT Portion 1512, valid rights of use for the passage of travelling stock; (c) in relation to NT Portions 4281 (Stock Reserve No. 1759), 4283 (Stock Reserve No. 1760), 5150 (Stock Reserve No. 1758), 5151 (Stock Reserve No. 1757), valid rights of use for stock routes and travelling stock; (d) Easement in Gross to the Northern Territory of Australia over part Perpetual Pastoral Lease No. 1001 (dealing number 759205 registered on 1 November 2011); (e) The following easements registered against Perpetual Pastoral Lease No. 1001: (i) Energy Supply Easement in favour of the Northern Territory of Australia (dealing number 192894 registered on 21 August 1987); (ii) Access easement in favour of the Commonwealth of Australia (dealing number 050409 registered on 25 November 1974); (f) the rights and interests of Telstra Corporation Limited (ACN 051 775 556): (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, occupy and operate telecommunications facilities; and C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (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 lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area. (g) 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. 1001 made by s 38 of the Pastoral Land Act 1992 (NT); (h) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (i) 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; (j) the rights to water lawfully captured by the holders of other interests; (k) the rights and interests of persons to whom valid and validated rights and interests have been: (l) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or (ii) otherwise conferred by statute; (l) the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT), the Petroleum Act 1984 (NT) and the Energy Pipelines Act (NT), depicted in Schedule E: (i) Exploration Licence Title No. 28041 granted on 9 December 2010; (ii) Exploration Licence Title No. 28604 granted on 27 September 2011; (iii) Exploration Licence Title No. 32158 granted on 4 February 2020; (iv) Exploration Licence Title No. 32032 granted on 9 July 2019; (v) Exploration Permit Title No. 136 granted on 28 August 2012; (vi) Exploration Permit Title No. 169 granted on 4 April 2013; and (vii) Onshore Pipeline Licence No. 4 granted on 13 December 1985.

[18]

Introduction 1 This judgment concerns the application by the parties that the Court make a determination of native title by consent over the area of the Helen Springs Pastoral Lease in the Northern Territory. 2 The parties make the application in order to resolve three applications filed in the Court for the determination of native title. 3 The principal application (NTD32/2011) was filed by the first applicant on 8 September 2011. It sought a determination of native title over the whole of the land and waters within the bounds of the Helen Springs Pastoral Lease (Perpetual Pastoral Lease No. 1001) and including Part NT Portion 4282 (being land comprising part of the Barkly Stock Route) and Part NT Portion 5149 (being land comprising part of the North South Stock Route). In addition, it sought a determination over the following areas: (i) NT Portion 4281, being the land the subject of Stock Reserve No. 1759 reserved for the purpose of a stock route and travelling stock; (ii) NT Portion 4283, being the land the subject of Stock Reserve No. 1760 reserved for the purpose of a stock route and travelling stock; (iii) NT Portion 5150, being the land the subject of Stock Reserve No. 1758 reserved for the purpose of a stock route and travelling stock; and (iv) NT Portion 5151, being the land the subject of Stock Reserve No. 1757 reserved for the purpose of a stock route and travelling stock. 4 In 2001, two "polygon" applications had been filed which covered portions of Perpetual Pastoral Lease No. 1001. They were actions NTD6005/2001 filed by the second applicant and NTD6038/2001 filed by the third applicant. The two polygon applications sought determinations 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). These areas did not coincide with the boundaries of Perpetual Pastoral Lease No. 1001. 5 I mention that another application (NTD6040/2001) which overlapped the proposed determination area has been discontinued. 6 On 11 August 2020, the Court made orders pursuant to s 67 of the Act which had the effect of amalgamating into NTD32/2011 portion of NTD6005/2001, being Banka Banka Polygon Part C, and portion of NTD6038/2001, being Powell Creek Polygon Part B, which overlapped portions of NTD32/2011. 7 The application in ND32/2011 was amended on 27 February 2018 and amended further on 12 October 2020. 8 The proposed consent determination will resolve the application in NTD32/2011 in its entirety. The parties seek the determination in respect of NTD32/2011 under s 87 of the Act. 9 The proposed consent determination will resolve NTD6005/2001 and NTD6038/2001 in part only, being the portions comprised in Banka Banka Polygon Part C and Powell Creek Polygon Part B respectively. The parties seek the determination in respect of those portions under s 87A of the Act. 10 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 includes the applications for determinations of native title over the Banka Banka East, Banka Banka West and Powell Creek Pastoral Leases. The Court is hearing and determining applications for consent determinations over the land and waters of 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 Helen Springs Pastoral Lease. 11 Dick Foster is the applicant in NTD32/2011. He brings the application on behalf of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups. 12 Archie Allen and eight others (Leo Dixon, Gordon Noonan, Marc Johnny, Dianne Stokes, Harry Morrison, Henry Norris, Day Day Frank and Elizabeth Johnson) bring application NTD6005/2001 on behalf of the Kunapa, Kurtinja and Mangirriji Peoples. 13 Lady Dixon and seven others (William Kingston, Eric Kingston, Peter Henderson, Janet Nabarula, Mary Noonan, Pompey Raymond and Jeffrey Dixon) bring application NTD6038/2001 on behalf of the Mali Mali, Yapa Yapa, Walanypirri, Jarrimanu and Wilyuku People. 14 The parties seek a determination that the land and waters in the determination area comprise the whole or part of seven estates held, respectively, by members of the following estate groups: (a) the Kanturrpa estate group; (b) the Ngapa estate group; (c) the Pirrtangu estate group; (d) the Walanyja estate group; (e) the Walanypirri estate group; (f) the Warranangku estate group; and (g) the Wirntiku estate group. 15 The determination area is large, comprising approximately 5,222 km2. It is located towards the western end of the Barkly Tableland. 16 In the following reasons, I explain why I consider it appropriate to make the determination sought by the parties.

[19]

The Court's power 17 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)). 18 Each of these conditions is satisfied in the present case. 19 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). … 20 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). … 21 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. 22 Those requirements are satisfied in the present case. 23 So also are the requirements of s 87A(1)(a), (b) and (c) in respect of the areas covered by the Banka Banka Polygon Part C and Powell Creek Polygon Part B areas. 24 A marked up copy of the parties' agreement containing the proposed determination of native title and signed by the respective solicitors for the first, second and third applicants, the Northern Territory and Telstra Corporation (the third respondent in NTD32/2011 and second respondent in NTD6038/2001) has been filed with the Court. 25 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. 26 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. …

[20]

The Court's approach 27 Both ss 87(1A) and 87A(4) require the Court to be satisfied that it is appropriate to make the proposed determination. 28 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. 29 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 … 30 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. 31 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]. 32 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. 33 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 Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups v Northern Territory of Australia

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