Glenn on behalf of the members of the Alherramp, Arempey, Lyelyepwenty, Ngwenyenp and Tywerl Landholding Groups v Northern Territory of Australia

(e) 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facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth) (repealed), the Telecommunications Act 1975 (Cth) (repealed), the Australian Telecommunications Corporation Acts 1989 (Cth) (repealed), the Telecommunications Act 1991 (Cth) (repealed) and under Schedule 3 to the Telecommunications Act 1997 (Cth), including rights: A. to inspect land; B. to install and operate telecommunication facilities; and C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities; and (iii) for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and (iv) under any lease, licence, access agreement or easement relating to its telecommunications facilities within the Determination Area. (f) NT Portion 725 (part) - the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases identified in ss 38(2) - (6) of the Pastoral Land Act 1992 (NT); (g) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (h) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties; (i) the interests of persons to whom valid or validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (ii) conferred by statute. Relationship between rights and interests 10. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 9, the other rights and interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over, but do not extinguish, the native title rights and interests. Other matters 11. 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)); (c) prescribed substances (as defined in s 5 of the Atomic Energy Act 1953 (Cth) and s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) (repealed)). 12. In this Determination the term: (a) "natural resources" means: (i) animals ferae naturae, birds, fish and plants, including timber, wax, resin and gum; and (ii) surface soils, clays, stone, rocks and ochre, but does not include minerals, petroleum and prescribed substances; (b) "natural waters" includes springs and rockholes. 13. Unless the contrary intention appears, a word or expression used in the NTA has the same meaning in this determination as it has in the NTA. Schedule A

1. The Determination Area comprises the following areas of land and waters: (a) That part of NT Portion 725 comprising an area of 1,492 square kilometres 34 hectares 56 square metres held under Perpetual Pastoral Lease No. 1030 further described as: Commencing at a point on the north-western most corner of NT Portion 725 (Pine Hill) and extending generally easterly along the northern boundaries of that NT Portion, NT Portion 4347 (North-South Stock Route) and again NT Portion 725 (Pine Hill) until its intersection with the western boundary of the Stuart Highway road reserve; then generally southerly along the western boundary of that road reserve to its intersection with the northern boundary of NT Portion 703 (Aileron); then generally westerly along the northern boundary of that NT Portion until its intersection with a line between coordinate points at Longitude 133.298342° East, Latitude 22.533717° South and Longitude 133.297177° East, Latitude 22.628531° South (being the eastern boundary of native title determination application NTD20/2007 Aileron (DC2007/002)); then northerly, generally westerly and southerly along the eastern, northern and western boundaries of that native title determination application through the following coordinate points: Longitude o (East) Latitude o (South) 133.298342 22.533717 133.152542 22.532109 133.152830 22.510439 133.037189 22.509071 133.036398 22.565048

Then easterly along a southern boundary of that native title determination application toward a point at Longitude 133.181251° East, Latitude 22.566753° South until its intersection with the northern boundary of NT Portion 703 (Aileron) (being a point on the northern boundary of native title determination application NTD08/2014 Aileron Pastoral Lease (DC2014/002)); then westerly along that NT Portion boundary and that native title determination application to the eastern boundary of NT Portion 748 (Napperby); then northerly and generally north westerly along the eastern and northern boundaries of that NT Portion back to the commencement point. Note Data Reference and source Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicants. Cadastral data sourced from NT Department of Lands Planning & the Environment (14 January 2016). Reference datum Geographical coordinates have been provided by the National Native Title Tribunal Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time. Use of Coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. Prepared by Geospatial Services, National Native Title Tribunal (4 October 2016). (b) NT Portion 4347 comprising an area of 52 square kilometres 2 hectares which is Crown land being part of the North-South Stock Route. 2. The following areas within the external boundaries of the Determination Area are not included in the Determination Area: (a) NT Portion 1811 comprising an area of 5,970 square metres located within NT Portion 725 held for an estate in fee simple by the Australian Telecommunications Commission; (b) NT Portion 3523 comprising an area of 7 hectares 1,400 square metres located within NT Portion 725 held for an estate in fee simple by the Anyungyumba Aboriginal Corporation; (c) A road 100 metres wide (Mount Denison Road) which traverses NT Portions 725 (Pine Hill) and 4347 (North-South Stock Route) from the southern boundary of NT Portion 690 (Coniston) to the western boundary of the Stuart Highway. Schedule B - Determination Area Schedule C - Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters. Public works

1. Those parts of the Determination Area covered by public works as defined in s 253 of the NTA that were constructed or established before 23 December 1996 or commenced to be constructed or established on or before that date (including land and waters within the meaning of s 251D of the NTA), including: (a) public roads, namely, rural public roads (50 metres either side of the centre line), rural arterial roads and national highways and associated road infrastructure; (b) community, pastoral access and other roads (including access roads and tracks to public works referred to in this clause) which are not otherwise public roads; (c) gravel and fill pits established to maintain the roads referred to in (a) and (b) above; (d) government bores and associated works; (e) river and rain gauges; (f) transmission water pipes (adjacent area 5 metres either side of the centre line); (g) distribution water pipes measuring 150mm diameter or less (adjacent area of 1.5 metres either side of the centreline) and greater than 150mm diameter (adjacent area 5 metres either side of the centreline); (h) sewer pipes measuring 150mm diameter or less (adjacent area 1.5 metres either side of the centreline) and greater than 150mm diameter (adjacent area 5 metres either side of the centreline); (i) bores, sewer pump stations and overhead power lines.
2. In addition to the areas referred to in paragraph 1 above, native title has been wholly extinguished over those parts of the Determination Area that were covered by the following public works (including land and waters within the meaning of s 251D of the NTA): (a) the Overland Telegraph Line; (b) Woodforde Well (being the area covered by former Miscellaneous Lease No 67); (c) Arden Soak Bore (No 21). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 All too often in recent years, when Judges of this Court, including myself, have been called on to make a determination of native title under the Native Title Act 1993 (Cth) (the NTA), it has been necessary to express grave concerns about the amount of time taken to bring the proceedings in question to finalisation and the tragic fact that, in the meantime, senior members of the claim groups have often died without witnessing the recognition of native title with respect to their traditional lands: see, for example, my decision in Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 at [7] and the decision of Rares J in Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [32]. Periods of 15 years or more are, regrettably, far from uncommon. It is therefore very pleasing to be involved in this native title determination where, as the short history set out below demonstrates, the time taken to bring the proceeding to finalisation is less than two years. In the context of native title proceedings in the Court, this is a remarkably short period of time and it is a great credit to all those involved, including the parties, their legal and other advisers and the Court staff. 2 On 31 August 2016, Mr Charlie Glenn and a number of other persons, acting as the authorised applicant (the Applicant), filed a native title determination application over various areas of land and waters in Central Australia. The originating application required an amendment to correct the description of the claim area, to include information contained in the short form anthropology report and to reflect a change in ownership of the pastoral lease. An amended application was filed on 2 February 2017, and leave was granted by the Court to amend the application on 3 February 2017. 3 Within three months of the Court granting leave to amend the application, the Applicant provided the first respondent, the Northern Territory of Australia, with its short form anthropological report and sites, estates and dreaming tracks map prepared by Dr Anna Kenny relating to the claim area identified in the application. The Northern Territory reviewed that material and, within a relatively short period, the parties reached agreement on all of the anthropological issues raised by the application. 4 On 3 October 2017, the Northern Territory provided the Applicant with a tenure analysis showing those parts of the claim area where it claimed native title had been extinguished. Again, within a relatively short period of time, the parties were able to reach an agreement with respect to those parts of the claim area in which native title existed, and those parts in which it no longer existed. Earlier this year the parties informed the Court that they had agreed on the terms of a set of proposed consent orders under s 87 of the NTA. On 8 May 2017, the parties provided executed consent orders to the Court, and the Applicant and the Northern Territory have filed a statement of agreed facts, joint submissions and the anthropological reports of Dr Kenny. Based on those materials, the parties have now requested the Court to make this consent determination of native title.

THE CLAIM AREA 5 The claim area identified in the application comprises some 1,544 square kilometres of land situated approximately 137 kilometres northwest of Alice Springs, west of the Stuart Highway. The claim area is covered by part of a perpetual pastoral lease, namely the west portion of Pine Hill Pastoral Lease (part NT Portion 725: PPL No. 1030), and NT Portion 4347. 6 The perpetual pastoral lease was granted under the Pastoral Land Act 1992 (NT) and had a commencement date of 1 July 1991. While that is approximately 30 years ago, that period is recent history in the context of the native title claimants' relationship with the claim area. However, as is the practice of the Court in dealing with native title claims over pastoral leases in the Northern Territory, this matter has been assigned the short title of "Pine Hill (West)": the western portion of the pastoral lease.

THE NATIVE TITLE CLAIM GROUP AND THE APPLICANT 7 As the reports of Dr Kenny record, the claimants are Anmatyerr people and their estates lie in Anmatyerr territory. Each estate is identified with one or more Altyerr/Dreamings (traditional narratives in which topographical features were created during the mythological creation period). There are five estates on, or partially on, the claim area: Ngwenyenp, Alherramp, Tywerl, Arempey and Lyelyepwenty. These estates are owned by five different, but interrelated, landholding groups which are part of a wider regional society. The claim group is united by Anmatyerr laws and customs, which govern the acquisition, possession, maintenance and transmission of rights and interests in land, and that of the broader society observing a common body of traditional laws and customs that applies to neighbouring landholding groups and regionally acknowledged persons who hold esoteric knowledge and authority. The claimants' system of traditional laws and customs has its foundation in the Altyerr and is held to be unchanged from the time of its creation and to have been transmitted unchanged to each succeeding generation by the ancestors. 8 In the main, land ownership in the claim area is determined by descent. The relevant lines are through a person's grandparents. Succession is also a common and important way to acquire rights in an estate, or part of an estate, whose original patriline is seriously weakened or deceased. In this respect, it is noted that partial succession has occurred in Arempey country and is also in progress in Lyelyepwenty country. 9 The Applicant is constituted by the following persons who are members of the named landholding groups: (1) Charlie Glenn (Tywerl); (2) Clancy Nelson (Arempey); (3) Peter Cole (Alherramp); (4) Walker Potter (Ngwenyenp); (5) Eric Penangke (Lyelyepwenty); and (6) Leslie Stafford (Tywerl).

THE OTHER PARTIES 10 Aside from the Applicant, the other parties to this proceeding are the Northern Territory of Australia and Australian Green Properties Pty Ltd.

THE CONDITIONS IN SECTION 87 OF THE NTA 11 Section 87 of the NTA empowers the Court to make an order consistent with the terms of a written agreement between the parties to a native title proceeding without holding a hearing in that proceeding. Before the Court can exercise that power, the procedural conditions specified in s 87(1) must be satisfied. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out five procedural criteria that parties must meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of those criteria and to consider whether they have been met in this matter. 12 The first criterion is that the notice period under s 66 of the NTA must have ended: s 87(1). The Pine Hill (West) Pastoral Lease application was notified by the Native Title Registrar on 28 June 2017. The period specified in that notice expired on 27 September 2017. I am therefore satisfied that this first criterion has been met. 13 The second criterion is that the agreement that has been reached must relate to the whole of the proceeding, or to a part of the proceeding, or to a matter arising out of the proceeding: s 87(1)(a). The executed consent orders filed with the Court show that the agreement relates to the whole of this proceeding. This second criterion has therefore been met. 14 The third criterion is that the agreement that has been reached must be reduced to writing, signed by, or on behalf of, the parties and filed with the Court: s 87(1)(b). As I have already mentioned above, executed consent orders have been filed with the Court. This criterion has also been satisfied. 15 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I observed (at [4]): … An order will be within the power of the Court if it is consistent with s 94A of the [NTA], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination … 16 Section 94A of the NTA requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 defines a "determination of native title" as follows: 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 and 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. 17 I have examined the consent orders executed by the parties and I am satisfied that each of the matters referred to in ss 225(a) - (e) above is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia. 18 Based on the records of the National Native Title Register kept under Pt 8 of the NTA, I am satisfied that there is no determination of native title in existence over the claim area. 19 I am therefore satisfied that a determination of native title in the terms sought by the parties would be within the power of the Court as required by s 87(1)(c). 20 Finally, before the Court makes a native title determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the NTA. In Nelson, I noted (at [7]) that these words: ... have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28] … 21 After canvassing the authorities relevant to this question in Nelson, I identified (at [14]) the following principles: (1) the central issue is whether there exists a free and informed agreement between the parties; (2) in determining whether such an agreement exists, the following factors will be significant: (a) the process followed by the State respondent party, particularly how it goes about assessing the underlying evidence as to the existence of native title; (b) whether the parties have independent and competent legal representation: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn) at [29] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (Lovett) at [39]-[40]; (c) whether the terms of the proposed consent orders are unambiguous and clear: Munn at [32]; and (d) whether the agreement has been preceded by a mediation process: Nangkiriny v State of Western Australia [2004] FCA 1156 at [6]; Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42]. 22 In their joint submissions, the Applicant and the Northern Territory submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because: (1) the parties were legally represented throughout; (2) the Northern Territory, as the first respondent, had obtained searches of land tenure and mining and other relevant interests to determine the extent of "other interests" within the proposed determination area and provided copies of those searches to all parties; (3) the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are those described in paragraph 9(a) - 9(h) of the proposed consent orders (s 225(c)); (4) there are no other proceedings before the Court relating to native title determination applications that cover any part of the claim area which would otherwise require orders to be made under s 67(1) of the NTA (ss 87(1) and (2)); (5) the Northern Territory, as the 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 NTA and having conducted a thorough assessment process, is satisfied that the proposed determination is justified in all the circumstances. 23 Having regard to these joint submissions and my review of the materials filed with the Court, including, in particular, the short form anthropological reports of Dr Kenny, I am satisfied that it is appropriate to make the proposed consent orders. 24 As to the principle set out in [21(b)(iii)] above, I have examined the consent orders executed by the parties and I consider that they are unambiguous and clear in their terms.

THE PRESCRIBED BODY CORPORATE 25 Order 2 of the proposed consent orders is to the effect that the native title in question is not to be held on trust. Accordingly, there is no need for me to make a nomination under s 56 of the NTA. However, in these circumstances, s 57(2) of the NTA requires certain steps to be taken to determine which prescribed body corporate is to perform the functions prescribed by s 57(3). 26 On this aspect, the consent orders executed by the parties seek a determination that the Pine Hill West Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 57(2) and to perform the functions prescribed by s 57(3) of the NTA. That agreement is supported by an affidavit of Ms Susan Polden, a lawyer employed by the Central Land Council and the Applicant's representative in this matter, in which she deposes that, at a meeting of the native title claim group held on 17 April 2018, the Pine Hill West Aboriginal Corporation (ICN 8823) was nominated by the claim group to be their prescribed body corporate and that the members of the Pine Hill West Aboriginal Corporation consented to it being so nominated. 27 Accordingly, as required by s 57(2)(b), I determine that the Pine Hill West Aboriginal Corporation is to be the prescribed body corporate to perform the functions prescribed by s 57(3) of the NTA.

CONCLUSION 28 One of the central objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this consent determination clearly serve to advance that central object. All the more so where, as I mentioned at the outset of these reasons, this consent determination has been achieved in a relatively short period of time. It is also worth adding that this consent determination of native title does not create native title in the claim area. Instead, it marks the recognition by the Australian legal system of the native title holding group's long held and pre-existing native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the claim group, since long before it was given the name Pine Hill (West). I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.