Henderson on behalf of the Bamayu (Wurwanawanji-Yarrayarra), Bamayu (Titirlku), Marlinja, Ngapa Jangirulu, Walanypirri and Wilyuku Groups v Northern Territory of Australia - [2020] FCA 1550 - FCA 2020 case summary — Zoe

CTHFCA

Henderson on behalf of the Bamayu (Wurwanawanji-Yarrayarra), Bamayu (Titirlku), Marlinja, Ngapa Jangirulu, Walanypirri and Wilyuku Groups v Northern Territory of Australia

[2020] FCA 1550

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

View original source

At a glance

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 21 May 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 NTD6038/2001. The application area in NTD6038/2001 covers part of the Powell Creek Pastoral Lease (Perpetual Pastoral Lease No. 948). B. On 8 January 2018, the First Applicant made a native title determination application over the land and waters within the bounds of the Powell Creek Pastoral Lease (Perpetual Pastoral Lease No. 948), NT Portion 3721 and NT Portion 6154, designated NTD1/2018 (the Application). C. On 11 August 2020, the Court made orders pursuant to s 67 of the Act which required NTD1/2018 and that portion of NTD6038/2001 (Part A) which overlaps portion of NTD1/2018 to be dealt with in the one proceeding (the Proceeding), being NTD1/2018. 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 NTD1/2018, 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]

Subject to clauses 13, 14 and 17 the native title rights and interests of the estate group members referred to in clause 5 in relation to the Schedule C1 areas, being areas where prior extinguishment of native title is to be disregarded pursuant to s 47A of the Act, are the rights of possession, occupation, use and enjoyment to the exclusion of all others, including the right to access and take for any purpose the resources of those areas.
Subject to clauses 12, 13, 14 and 18, the native title rights and interests of the estate group members referred to in clause 5 in relation to the Schedule C2 areas, 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.
Subject to clauses 12, 13, 14, 17 and 18, the native title rights and interests of the persons referred to in clause 7 above in relation to the Schedule C1 areas and Schedule C2 areas 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 identified in clauses 10 and 11 above 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. 948; 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 2094, the rights and interests of the holder of Perpetual Pastoral Lease No. 948; (b) In relation to NT Portion 3721, the interest of the Jangirurlu Aboriginal Corporation as the holder of a fee simple estate; (c) In relation to NT Portion 6154, the interest of the Pamayu Aboriginal Corporation as holder of a fee simple estate (subject to the Powell Creek CLA ILUA No. DI2004/003 entered on the Register of Indigenous Land Use Agreements on 28 June 2004); (d) The rights and interests of APT Pipelines (NT) Pty Ltd under: (i) Sublease of part Perpetual Pastoral lease No. 948 (Dealing number 862924 registered 12 January 2016); and (ii) Energy Supply Easement over part Pastoral Lease No. 948 (dealing number 698099 registered 23 April 2009). (e) Covenant in gross in favour of the Parks and Wildlife Commission of the Northern Territory (dealing number 699271); (f) The access easements registered on 3 January 2006 pursuant to section 14A of the AustralAsia Railway (Special Provisions) Act (NT) pursuant to dealing numbers 598491, 598492, 600259, 600260, and 600261 respectively; (g) Energy Supply Easement in favour of the Northern Territory of Australia (dealing number 197464 registered on 17 December 1987); (h) The rights of the Minister pursuant to the Heritage Act (NT) 2011 over the Powell Creek Telegraph Station (proposed NT Portion 5988) as a declared heritage place; (i) 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. 948 made by s 38 of the Pastoral Land Act 1992 (NT); (j) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (k) 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; (l) the rights to water lawfully captured by the holders of other interests; (m) 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; (n) 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 1981 (NT) as depicted in Schedule E: (i) Exploration Licence No. 32156 granted on 4 February 2020; (ii) Exploration Licence No. 32157 granted on 4 February 2020; (iii) Exploration Licence No. 32158 granted on 4 February 2020; (iv) Exploration Permit No. 169 granted on 4 April 2013; and (v) Onshore Pipeline Licence No.4 granted on 13 December 1985.

[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 Powell Creek Pastoral Lease (Perpetual Pastoral Lease No. 948) 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 NTD1/2018 which was filed by the first applicant on 8 January 2018. This application covers all of the land and waters within the Powell Creek Pastoral Lease, this being an area of approximately 4,184 km2. 4 An earlier application for determination of native title over part of the area of the Powell Creek Pastoral Lease had been filed by the second applicant on 21 May 2001 (NTD6038/2001). 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 NTD1/2018 and that part of NTD6038/2001 which covered part of the Powell Creek Pastoral Lease (Powell Creek Polygon Part A) be dealt with together. 6 The proposed consent determination will resolve the application in NTD1/2018 in its entirety. The parties seek the determination in respect of NTD1/2018 under s 87 of the Act. 7 The proposed consent determination will resolve NTD6038/2001 in part only, being the part comprised of Powell Creek Polygon Part A. The parties seek the determination in respect of that part of NTD6038/2001 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, Banka Banka East 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 Powell Creek Pastoral Lease. 9 The persons who comprise the applicant in NTD1/2018 are Peter Henderson, Harry Bates, Heather Wilson, Warren Campbell, Mary Noonan, Linda Benson, Neil Alum, Jeffrey Dixon and Mark Raymond. They bring the application on behalf of the following estate groups: (a) the Bamayu (Wurwanawanji-Yarrayarra) estate group; (b) the Bamayu (Titirlku) estate group; (c) the Marlinja estate group; (d) the Ngapa Jangirulu estate group; (e) the Walanypirri estate group; and (f) the Wilyuku estate group. 10 The persons who comprise the applicant in NTD6038/2001 are Lady Dixon, William Kingston, Eric Kingston, Peter Henderson, Janet Nabarula, Mary Noonan, Pompey Raymond and Jeffrey Dixon. They bring the application on behalf of the Mali Mali, Yapa Yapa, Walanypirri, Jarrimanu and Wilyuku People.

[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 Powell Creek 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, Consolidated Pastoral Company Pty Ltd (the second respondent) and APT Piplelines (NT) Pty Ltd (the third 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.

Henderson on behalf of the Bamayu (Wurwanawanji-Yarrayarra), Bamayu (Titirlku), Marlinja, Ngapa Jangirulu, Walanypirri and Wilyuku Groups v Northern Territory of Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (8)