Karkdoo on behalf of the Purrukwarra Estate Group and the Arruwarra Estate Group v Northern Territory of Australia

Karkdoo on behalf of the Purrukwarra Estate Group and the Arruwarra Estate Group v Northern Territory of Australia - [2024] FCA 176 - FCA 2024 case summary — Zoe

[10]

THE COURT NOTES THAT: A. On 8 May 2001, the Second Applicant made a native title determination application (the Dalmore Downs Polygon claim) (NTD6030/2001) over the land and waters the subject of several future act notices issued under s 29 of the Native Title Act 1993 (Cth) (the Act). The area of the Dalmore Downs Polygon claim covers part of Dalmore Downs Pastoral Lease (Pastoral Lease No. 988). B. On 12 March 2002, the Third Applicant made a native title determination application (the Dalmore Downs South Polygon claim) (NTD6003/2002) over the land and waters the subject of two other future act notices issued under s 29 of the Act. The area of the Dalmore Downs South Polygon claim covers part of Pastoral Lease No. 988, and is located wholly within the bounds of that lease. C. On 1 November 2019, the First Applicant made a native title determination application (the Dalmore Downs Pastoral Lease claim) (NTD37/2019) covering all of the land and waters within the bounds of Pastoral Lease No. 988 over Northern Territory Portion 773 (NTP 773). D. On 5 August 2022, the Court made orders pursuant to s 67(2) of the Act, splitting the area of the Dalmore Downs Polygon claim into three parts: A, B and C. Part A of the Dalmore Downs Polygon claim was a subject of the determination of native title over Rocklands Pastoral Lease on 8 September 2022. Part B was dismissed with the consent of the parties. E. On 8 November 2023, the Court made further orders pursuant to s 67(2) of the Act, splitting Part C of the Dalmore Downs Polygon claim into two parts: C and D. Part C now comprises that part of the Dalmore Downs Polygon claim area which is overlapped by the Dalmore Downs Pastoral Lease claim. F. On 8 November 2023, the Court also made orders pursuant to s 67(1) of the Act that the Dalmore Downs Pastoral Lease claim, Dalmore Downs Polygon claim Part C and the Dalmore Downs South Polygon claim be heard and determined together in the same proceeding, which is to be called the Dalmore Downs Pastoral Lease Proceeding (the Proceeding). G. The Applicants and the Respondents in 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 Proceeding. H. Pursuant to ss 87(1), 87A(1) and 87A(2) of the Act, the Parties have filed with the Court their agreement in writing as to the determination of native title set out below (the Determination). The external boundaries of the area subject to the Determination are described in Schedule A of the Determination and depicted on the map comprising Schedule B of the Determination (the Determination Area). I. 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. J. The Parties acknowledge that the effect of making the Determination is that the members of the native title claim group in the Dalmore Downs Pastoral Lease claim, 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. K. The Parties request that the Court hear and determine this Proceeding in accordance with their agreement. BEING SATISFIED that a determination of native title in the terms of the Determination would be 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 with the consent of the Parties:

[13]

The native title holders 5. The land and waters of the Determination Area comprise parts of two estates, which are held respectively by the members of the following estate groups: (a) the Purrukwarra estate group; and (b) the Arruwarra estate group. The members of these estate groups are described in clauses 6 and 7, and are referred to as the "estate group members". These persons, together with the persons referred to in clause 8, are collectively referred to as the "native title holders". 6. The Purrukwarra estate group referred to in clause 5(a) comprises persons who are members of that group by reason of: (a) patrilineal descent from one of the following ancestors: (i) Mijimijandu, including through his sons Left Hand Leo and Avon (Rainmaker) Willy; or (ii) Bill Mukathu-mukathu, including through his son Old Bill Carghetty Kurajan; or (b) his or her mother or father's mother or mother's mother being or having been a patrilineal descendant of one of the ancestors listed at (a) above; or (c) having been adopted or incorporated, in accordance with the traditional laws and customs of the Purrukwarra estate group, into one of the descent-based relationships referred to in (a) or (b) above. 7. The Arruwarra estate group referred to in clause 5(b) comprises persons who are members of that group by reason of: (a) descent from the ancestor, George Nemo Nyiterantere; or (b) having been adopted or incorporated, in accordance with the traditional laws and customs of the Arruwarra estate group, into the descent-based relationship referred to in (a) above. 8. 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 neighbouring native title holding groups or estate groups; and (b) spouses of the estate group members.

[14]

The native title rights and interests 9. The native title rights and interests of the estate group members referred to in clauses 6 and 7 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 area; (b) to access and to take for any purpose the resources of the area; 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 8 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 area; and (b) to access the resources of the area. 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 area or its resources; (c) any right to access or take: (i) water captured by the holders of Pastoral Lease No. 988; 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.

[16]

Other interests in the Determination Area 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 773, the rights and interests of the holder of Pastoral Lease No. 988; (b) the rights and interests of Jemena Northern Gas Pipeline Pty Ltd pursuant to: (i) Pipeline Licence No. 34 granted on 26 April 2017 under the Energy Pipelines Act 1981 (NT); and (ii) the energy supply easement across NT Portion 773 registered by dealing number 926804 on 20 December 2019; (c) the rights and interests of all parties under the Northern Gas Pipeline: Dalmore Downs Indigenous Land Use Agreement DI2018/003, registered on 3 July 2018; (d) the rights and interests of all parties under the Northern Gas Pipeline: Dalmore Downs South Indigenous Land Use Agreement DI2018/004, registered on 3 July 2018; (e) the rights and interests in the access easements (S72/200 and S72/201) over NT Portion 773 in favour of Amplitel Pty Ltd; (f) the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples in Pastoral Lease No. 988 made by s 38 of the Pastoral Land Act 1992 (NT); (g) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (h) 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; (i) the rights to water lawfully captured by the holders of other interests; (j) 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; (k) the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT) or the Energy Pipelines Act 1981 (NT), depicted in Schedule E: (i) Pipeline Licence Title No. PL 34, granted on 26 April 2017; (ii) Exploration Licence Title No. 31963, granted on 6 February 2019; (iii) Exploration Licence Title No. 31974, granted on 7 March 2019; (iv) Exploration Licence Title No. 32287, granted on 28 March 2021; (v) Exploration Licence Title No. 32302, granted on 4 February 2021; (vi) Exploration Licence Title No. 32500, granted on 27 May 2021; (vii) Exploration Licence Title No. 32653, granted on 25 August 2021; (viii) Exploration Licence Title No. 32689, granted on 14 October 2021; (ix) Exploration Licence Title No. 32795, granted on 15 September 2021; (x) Exploration Licence Title No. 32857, granted on 11 May 2022; (xi) Exploration Licence Title No. 33258, granted on 13 September 2022; (xii) Exploration Licence Title No. 33282, granted on 12 September 2022; (xiii) Exploration Licence Title No. 33276, granted on 7 November 2022; (xiv) Exploration Licence Title No. 33375, granted on 21 February 2023; (xv) Exploration Licence Title No. 33588, granted on 5 September 2023; (xvi) Exploration Licence Title No. 33590, granted on 6 September 2023; (xvii) Exploration Licence Title No. 33592, granted on 2 October 2023; and (xviii) Exploration Licence Title No. 33610, granted on 19 October 2023.

[23]

Introduction 1 By orders made today, a determination of native title under the Native Title Act 1993 (Cth) (NTA) has been made on behalf of members of the Purrukwarra estate group and the Arruwarra estate group, their spouses and members of neighbouring estate groups (as described below) in respect of an area of land and waters approximately 200 kilometres east of Tennant Creek in the Northern Territory. 2 The determination is made in the following proceedings: (a) application made on behalf of the Purrukwarra estate group and the Arruwarra estate group in proceeding NTD37/2019 (Dalmore Downs Pastoral Lease claim); (b) application made on behalf of the Wakaya people in proceeding NTD6030/2001 (Dalmore Downs Polygon claim) Part C; and (c) application made on behalf of the Purrukwarra Wakaya people in proceeding NTD6003/2002 (Dalmore Downs South Polygon claim). 3 The area of land and waters the subject of the determination is the area covered by the Dalmore Downs Pastoral Lease claim. The Dalmore Downs Polygon claim Part C and the Dalmore Downs South Polygon claim relate to areas of land and waters within the area covered by the Dalmore Downs Pastoral Lease claim. On 8 November 2023, the Court made orders pursuant to s 67(1) of the NTA that the Dalmore Downs Pastoral Lease claim, Dalmore Downs Polygon claim Part C and the Dalmore Downs South Polygon claim be heard and determined together in the same proceeding (called the Dalmore Downs Pastoral Lease Proceeding). 4 The parties to the Dalmore Downs Pastoral Lease Proceeding reached agreement on the terms of a native title determination (proposed consent determination) for the area of land and waters the subject of the Dalmore Downs Pastoral Lease claim (Determination Area) and a form of orders regarded as appropriate to provide recognition of the native title rights and interests held by the native title applicants in the Determination Area. The agreement is recorded in a document filed with the Court which has been signed on behalf of each party. 5 The parties have applied to the Court for an order in, or consistent with, the terms of the proposed consent determination pursuant to ss 87 and 87A of the NTA. The parties rely on s 87 in respect of the Dalmore Downs Pastoral Lease claim and the Dalmore Downs South Polygon claim as the agreement relates to all of the area covered by those applications. The parties rely on s 87A in respect of the Dalmore Downs Polygon claim Part C as the agreement relates to that part of the claim. 6 In support of the application, the parties have filed: (a) a joint submission of the applicants and the Northern Territory dated 21 February 2024; (b) a statement of joint agreed facts of the applicants and the Northern Territory dated 21 February 2024 (Agreed Facts); (c) an affidavit of Todd Arie Herskope, a solicitor employed by the Northern Land Council (NLC), affirmed 14 February 2024 concerning the proposed prescribed body corporate; and (d) an affidavit of Daniel Wells, a solicitor employed by the NLC, affirmed 1 March 2024 concerning the proposed prescribed body corporate. 7 The Court's determination today has been made pursuant to the powers conferred on the Court under ss 87 and 87A of the NTA. These are my reasons for making the determination sought by the parties.

[24]

The native title applications 8 On 8 May 2001, the Wakaya people filed the Dalmore Downs Polygon claim in the Federal Court. The application was notified under s 66 of the NTA on 3 October 2001, with the period specified in that notice ending on 2 January 2002. 9 On 12 March 2002, the Purrukwarra Wakaya people filed the Dalmore Downs South Polygon claim in the Federal Court. The application was notified under s 66 of the NTA on 11 December 2002, with the period specified in that notice ending on 10 March 2003. 10 On 1 November 2019, the Purrukwarra estate group and the Arruwarra estate group filed the Dalmore Downs Pastoral Lease claim in the Federal Court. The application was notified under s 66 of the NTA on 12 February 2020, with the period specified in that notice ending on 11 May 2020. 11 On 5 August 2022, the Court made an order under s 67(2) of the NTA that the Dalmore Downs Polygon claim be separated into three parts: Part A, Part B and Part C. Part B was dismissed by those same orders. On 8 September 2022, the Court made a determination of native title under ss 87 and 87A of the NTA over the land and waters the subject of Part A of the Dalmore Downs Polygon Claim: Saltmere on behalf of the Indjalandi-Dhidhanu People v Northern Territory of Australia (Rocklands Pastoral Lease Proceeding) [2022] FCA 1040. Pursuant to s 64(1B) of the NTA, the Dalmore Downs Polygon claim was deemed to be amended to remove the area covered by that determination. 12 As noted above, on 8 November 2023 the Court made further orders under s 67(2) of the NTA that the Dalmore Downs Polygon Claim be further separated into two parts, Part C and Part D, with Part C comprising that part of the Dalmore Downs Polygon claim area which is overlapped by the Dalmore Downs Pastoral Lease claim. Part D, which now comprises that part of the remaining area of the Dalmore Downs Polygon claim area which is not overlapped by the Dalmore Downs Pastoral Lease claim, is to be dealt with in a separate proceeding. On the same date, the Court made an order under s 67(1) of the NTA that the Dalmore Downs Pastoral Lease claim, the Dalmore Downs Polygon claim Part C and the Dalmore Downs South Polygon claim are to be heard and determined together in the same proceeding called the Dalmore Downs Pastoral Lease Proceeding. In that combined proceeding, the applicant in the Dalmore Downs Pastoral Lease claim, being the Purrukwarra estate group and the Arruwarra estate group, is referred to as the first applicant and the Northern Territory is the first respondent. 13 The Determination Area that is the subject of this proceeding is approximately 4,797 km2 and lies within the bounds of the Dalmore Downs Pastoral Lease (Pastoral Lease No 988) in the Northern Territory. The Determination Area is approximately 200km east of Tennant Creek. The Barkly Highway intersects much of the Determination Area.

[25]

Investigation and conferral 14 The Agreed Facts records the evidentiary material provided by the first applicant to the Northern Territory, and considered by the Northern Territory, which led to the agreement to the proposed consent determination. 15 The first applicant provided the Northern Territory with a report dated February 2020 prepared by the anthropologist John Dymock which identified: the Aboriginal groups who, under traditional laws acknowledged and traditional customs observed, possess primary and secondary rights in the Determination Area; the nature and extent of the native title rights and interests in relation to the Determination Area consistent with the formulation of native title rights and interests in Rrumburriya Borroloola Claim Group v Northern Territory (2016) 255 FCR 228; the connection of a senior member of each group to the Determination Area by provision of a representative biography of that person; and the sites and dreaming tracks in the Determination Area. 16 The Northern Territory assessed that report against criteria agreed between the parties as satisfying the requirements of s 223 of the NTA. The Northern Territory referred Mr Dymock's report to the anthropologist Dr Richard Martin for comment, and subsequently provided the applicants with a report by Dr Martin dated 26 November 2021. The first applicant and the Northern Territory exchanged correspondence in relation to outstanding queries arising from Dr Martin's report. The Northern Territory later raised queries in relation to Mr Dymock's report, which the first applicant then referred to the anthropologist Shannon O'Connell Tchia. The first applicant subsequently provided the Northern Territory with Ms Tchia's report dated 27 October 2023, which was then referred to Dr Martin. Dr Martin composed a further report dated 16 November 2023 and provided it to the Northern Territory. 17 The parties also conferred in relation to land tenure and public works. Following this assessment process, the parties resolved all outstanding issues concerning native title rights and interests, land tenure and public works in the Determination Area.

[28]

Social organisation and land tenure 21 The applicants' social and cultural organisation is grounded in a doctrine that the land, and everything on it, is the result of the activities of ancestral beings (dreamings), which bestowed land ownership, and instituted laws and customs, including rules for ritual, social and economic behaviour. The applicants trace their spiritual affiliations to the ancestral beings and the land and sites influenced by them through the following lines of descent: (a) Kirta (Bukuru, Mangaya, Miniringki): from the father's father; (b) Kurtungurlu (or Kwertengerl, Junggayi): from the father's mother or the mother's father; and (c) Jaju: from the mother's mother. 22 According to Wakaya laws and customs, different but complementary responsibilities in land are associated with each category. The kirta possess rights such as passing on the ritual and corporate property of their country to their patrilineal descendants, performing as actors in ceremony, and making decisions about access to their country's economic and spiritual resources. The kurtungurlu are responsible under traditional laws and customs for painting designs on the kirta, ensuring protection of sacred sites, and ensuring that ceremonies are performed in the appropriate manner. Together, the kirta and kurtungurlu make decisions about, and have primary rights in, a group's country. Those who claim through their jaju (mother's mother) have responsibilities under Wakaya laws and customs towards their "granny's" country, including dancing in ceremony. 23 According to their traditional laws and customs governing social organisation, the applicants identify themselves by reference to either the Wakaya sub-section system or the Alyawarr section system. The Wakaya sub-section system consists of two moieties (A and B), each of which consists of two named semi-moieties: A - Mambalia and Rumburriya; and B - Wialia and Wudalia. Each of those semi-moieties has four sub-sections. The mutually intelligible Alyawarr section system divides society into four named categories: Apetyarr, Kngwarrey, Akemarr and Apwerl. 24 Under their traditional laws and customs, the applicants are responsible for the intergenerational transfer of those laws and customs, including through ceremony. Senior claimant Allen Punch explains: [The] old people learned our law from their old people, who would have learned it from their old people, and so it goes, like that. I'm teaching the next generation. I learned the rules about going on my country and other people's country through my old people and by going through initiation ceremonies.

[31]

Native title rights and interests 32 Under the traditional laws and customs acknowledged and observed, in relation to areas where the right to exclusive possession has been extinguished, the members of the Purrukwarra and Arruwarra estate groups, being the primary native title holders, possess the rights to: (a) access, remain on and use the areas; (b) access and to take for any purpose the resources of the areas; and (c) protect places, areas and things of traditional significance. 33 Under the same body of traditional laws and customs, rights are also held in the proposed determination area by members of neighbouring groups and spouses of the primary native title holders (subject to the rights and interests of the primary native title holders). These are the rights to: (a) access, remain on and use the areas; and (b) access the resources of the areas. 34 In exercising and enjoying their native title rights and interests in the areas where they hold native title, the kinds of activities that the primary native title holders undertake include: (a) travelling over, moving about, and accessing the areas; (b) living, camping, and erecting shelters and other structures; (c) hunting and fishing; (d) gathering and using the natural resources of the areas, such as food, medicinal plants, wild tobacco, stone and resin; (e) taking and using natural water (but not water captured by the holders of Pastoral Lease 988); (f) lighting fires for domestic purposes; (g) conducting ceremonies, meetings and other cultural practices; (h) maintaining and protecting sacred sites; and (i) being accompanied and supported in these activities by other Aboriginal people who, under the applicant's traditional laws and customs, are permitted or required to be there. 35 A senior applicant, Allen Punch, reflected on a childhood trip to the proposed Determination Area in the following way: They took me hunting and camping on … country, including on Dalmore Downs and West Ranken stations. [They] would take us hunting along the Ranken River, hunting for kangaroos, goannas, and turkey for example. 36 Aboriginal use of resources is without restriction. However, there are certain rules that need to be followed. Mr Punch explained: I don't have to ask permission to take or use things from … country. Normally, I can take and use anything for any reason: animals, plants, water, or earth. I just need to make sure that I don't take things from sacred sites, and that I talk to other senior … people before doing something that would have a big impact on our country. … My old people told me that, during ceremonies and at other times when we got together … mob used to trade things like hair belts, nulla nullas (clubs), and 'number-seven' boomerangs with other Aboriginal people. 37 The rights and interests described above have been possessed, and continue to be possessed, under traditional laws acknowledged and traditional customs observed by the applicants since time immemorial, including at the time when sovereignty was asserted by the Crown of the United Kingdom and at the time of first contact with non-Aboriginal people.

[37]

Section 94A (details required by s 225) and s 223(1)(c) 46 Section 94A provides that "[a]n order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title)". 47 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. … 48 I have examined the proposed consent determination. I am satisfied that each of the matters referred to in s 225 is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia (as per s 223(1)(c)). I note the following matters in particular: (a) The Determination Area is defined at paragraph 1 of the proposed consent determination by reference to Schedules A and B, with paragraph 2 defining the parts of the Determination Area in which native title does and does not exist by reference to Schedules C and D. (b) A description of the native title holders is set out in paragraphs 5 to 8 of the proposed consent determination. (c) A description of the nature and extent of the native title rights and interests in relation to the Determination Area is set out in paragraphs 9 to 13 of the proposed consent determination. Paragraph 11 stipulates that the native title rights and interests do not confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. (d) A description of the nature and extent of other interests in relation to the Determination Area is set out in paragraph 15 of the proposed consent determination. (e) The relationship between the native title rights and interests and the other interests is set out in paragraph 16 of the proposed consent determination.

[38]

Section 55 (whether native title held in trust and prescribed body corporate) 49 Section 55 of the NTA stipulates that, if the Court proposes to make an affirmative determination of native title it must, at the same time as, or as soon as practicable after, it makes the determination, make such determinations as are required by s 56 (which deals with the question whether the native title is to be held in trust) and s 57 (which deals with the determination of a prescribed body corporate and its functions). 50 The determinations that are required to be made by the Court under ss 56 and 57 of the NTA are important elements of a native title determination, a matter which has been highlighted by some recent cases in the Court: see Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497 and Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 276. 51 Section 56(1) provides that the Court must determine whether the native title is to be held in trust (and if so, by whom). By s 56(2) of the NTA, if the common law holders of native title nominate a prescribed body corporate to hold their rights and interests in trust, the Court must make a determination to that effect; if a nomination is not given, the Court must determine that the rights and interests are to be held by the common law holders. In the present case, no such nomination has been given and the Court must therefore determine that the rights and interests are to be held by the common law holders. This is consistent with the proposed consent determination. 52 Section 57(2) provides that, if the rights and interests are to be held by the common law holders, the determination must specify a prescribed body corporate to perform the functions mentioned in s 57(3). 53 Under the proposed consent determination, the native title is not to be held in trust and Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (ICN 7848) (Top End Default PBC) is to be appointed as the prescribed body corporate for the purposes of s 57(2) of the NTA. In his affidavit, Mr Herskope deposed that the NLC consulted with the members of the native title claim group about the nomination of a prescribed body corporate in respect of their proposed determination of native title. Mr Herskope further deposed that, in accordance with processes that must be followed under the traditional laws and customs of the native title claim group when making decisions about matters of this kind, the native title claim group instructed the NLC to nominate Top End Default PBC to be their agent prescribed body corporate in relation to the determination of native title in the Dalmore Downs Pastoral Lease proceeding. Mr Herskope further deposed that, at a general meeting held on 31 January 2024, the Directors of Top End Default PBC resolved to accept that nomination. The Directors unanimously passed the following resolution: The directors resolve that the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC consents to be determined by the Federal Court to be the agent prescribed body corporate pursuant to s 57(2) of the Native Title Act 1993 (Cth) in relation to the native title determination in the Dalmore Downs Pastoral Lease Proceeding, and, after becoming the registered native title body corporate in relation to the determination, to perform the functions referred to at s 57(3) of the Native Title Act 1993 (Cth). 54 Section 59 provides that regulations may prescribe the kinds of body corporate that may be determined under s 57(2). Regulation 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) sets out the requirements for a body corporate to be a prescribed body corporate for that purpose. Regulation 4 provides as follows: 4 Prescribed bodies corporate (Act s 59) (1) An Aboriginal and Torres Strait Islander corporation is prescribed for section 59 of the Act if it is registered for the purpose of being the subject of a section 56 or 57 determination. (2) An Aboriginal and Torres Strait Islander corporation is taken to be registered for the purpose of being the subject of a section 56 or 57 determination only if: (a) the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and (b) all members of the corporation are: (i) persons who, at the time of making of the section 56 or 57 determination, are included, or are proposed to be included, in the native title determination as native title holders; or (ii) persons to whom the persons mentioned in subparagraph (i) have consented; and (c) at all times after the section 56 or 57 determination is made, all members of the corporation are: (i) persons who have native title rights and interests in relation to the land or waters to which the native title determination relates; or (ii) persons, or a class of persons, to whom the persons mentioned in subparagraph (i) have consented; and (d) the corporation meets the Indigeneity requirement mentioned in section 29-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. 55 Regulation 3 stipulates that the expression "Aboriginal and Torres Strait Islander corporation" has the same meaning as in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), which is a corporation registered under that Act. 56 It can be seen that reg 4 sets out four principal requirements for a body corporate to be a prescribed body corporate: (a) the body corporate must be registered under the CATSI Act; (b) the purpose of becoming a registered native title body corporate must be set out in the objects of the corporation; (c) the corporation must meet the Indigeneity requirement mentioned in s 29-5 of the CATSI Act; and (d) all members of the body corporate must either be the native title holders in respect of the determination, or persons in respect of whom the native title holders have given their consent. 57 Mr Herskope's affidavit affirmed that the fourth requirement was satisfied because the native title claim group instructed the NLC to nominate Top End Default PBC to be their agent prescribed body corporate. However, the parties did not initially adduce any evidence with respect to the first three requirements. The Court therefore requested the applicant to adduce further evidence with respect to the first three requirements. In his affidavit, Mr Wells provided evidence that Top End Default PBC was registered under the CATSI Act in satisfaction of the first requirement, but did not directly provide evidence as to the second and third requirements. Nevertheless, Mr Wells deposed that Top End Default PBC has previously been nominated as a prescribed body corporate for the purposes of s 57(2) of the NTA in respect of 85 native title determinations in the Northern Territory. In the circumstances, I am willing to infer that the requirements under reg 4 have been satisfied. I record, though, that the Court would be assisted in future proceedings by receiving direct evidence confirming the fulfilment of those requirements: see Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia [2023] FCA 60 at [54]. 58 The fact that Top End Default PBC has been appointed as an agent prescribed body corporate in numerous native title determinations in the Northern Territory raises a question concerning compliance with s 59A of the NTA. Section 59A stipulates that, if a prescribed body corporate is a trustee or agent for some common law holders, the Court may determine that it is to be a trustee or agent respectively for other common law holders so long as all of the common law holders consent. Section 59A was enacted by the Native Title Amendment Act 2007 (Cth). The relevant Explanatory Memorandum explained the purpose of the provision in the following terms: Item 3 - After section 59 4.5 This item implements a measure in the PBC Report to enable an existing PBC to be determined as a PBC for subsequent determinations of native title in circumstances where the native title holders covered by all determinations agree to this (recommendation 7). 4.6 The report considered this measure may encourage economies of scale by allowing PBC infrastructure and resources to be utilised by more than one group of native title holders. To implement the measure, amendments will also be required to the PBC Regulations. 4.7 This item inserts proposed section 59A, which would allow an existing PBC to be determined by the Court as a PBC for subsequent native title determinations if all common law holders concerned agree. An existing trust PBC could only be determined as a trust PBC (not an agent PBC) for subsequent determinations (proposed subsection 59A(1)). Conversely, an existing agent PBC could only be determined as an agent PBC (not a trust PBC) for subsequent determinations (proposed subsection 59A(2)). A definition of agent PBC would be inserted by item 4. 4.8 Proposed subsection 59A(3) allows regulations to prescribe how the consent of the common law holders for the existing PBC, and the consent of the common law holders proposing to use the existing PBC, may be obtained. 59 Regulation 4A of the PBC Regulations prescribes the manner in which the consent of existing common law holders is to be obtained. It stipulates that the prescribed body corporate must consult the common law holders for whom the prescribed body corporate holds native title rights and interests in trust or as agent (the initial holders) and obtain their consent in accordance with any applicable traditional decision-making process or, if there is no such process, in accordance with a process of decision‑making agreed to, or adopted, by the initial holders in relation to giving the consent. 60 The Court requested the applicant to address those legal requirements and the manner in which they had been satisfied in the present case. The Court also invited a joint submission on behalf of the applicant and the Northern Territory, if that was necessary. In response, the applicant relied on the affidavit of Mr Wells. The Northern Territory informed the Court that it did not wish to make a submission on the question of compliance with s 59A. 61 In his affidavit, Mr Wells explained the background to the creation of Top End Default PBC to act as an agent prescribed body corporate where the native title holders considered that it would be appropriate in their circumstances. Correspondence between the NLC and the Court in 2012 explained that, in respect of a significant number of determinations of native title in the Northern Territory, there were few if any functions to be performed by the prescribed body corporate and little if any income that can be used to fund the necessary reporting requirements of a body corporate. If separate entities were created to act as prescribed bodies corporate for each determination of native title, experience had shown that the entities may lapse into non-compliance with reporting requirements under the CATSI Act. 62 Top End Default PBC was registered under the CATSI Act on 7 March 2013. Mr Wells deposed that the NLC caused the Top End Default PBC to be established to function as a "default" option for native title groups who did not have access to, or did not wish to use, a suitable alternative corporation of their own. I understand from Mr Wells's affidavit that the members of Top End Default PBC comprise the Executive Council of the NLC. 63 With respect to compliance with s 59A, Mr Wells deposed to the following matters: (a) From 2013 onwards, the NLC facilitated consultations with common law native title holding groups, seeking their instructions about which prescribed body corporate they wished to nominate, and offering the Top End Default PBC as a default option. During such consultations, the NLC has provided an information sheet which explains the functions of a prescribed body corporate and the structure, rules and purpose of the Top End Default PBC. The information sheet conveys that Top End Default PBC was created to act as the agent prescribed body corporate for any and all common law native title holding groups that nominate it to perform that function. (b) Common law native title holders across all of the proposed native title determinations in the NLC's representative body area make decisions about nominating a prescribed body corporate, and consenting to the subsequent nomination of that prescribed body corporate, in accordance with a process of decision-making that, under their traditional laws and customs, must be followed in relation to consenting to or deciding matters of that kind. (c) The nature of this decision-making process varies according to the traditional laws and customs of the particular group. The content of those traditional laws and customs is a matter of fact, on which the NLC may, from time to time, seek expert anthropological advice and information from senior native title holders. (d) On every occasion that common law native title holders have considered whether to nominate Top End Default PBC to be their agent prescribed body corporate, they have been explicitly advised that, by its nature, Top End Default PBC has been nominated by other native title holders and is likely to be nominated in future determinations. In proceeding to nominate Top End Default PBC on this basis, the common law native title holders consent to any and all subsequent nominations, in accordance with s 59A and reg 4A. 64 The purpose for which Top End Default PBC was created is consistent with the purpose for which s 59A was enacted - to encourage economies of scale by allowing prescribed body corporate infrastructure and resources to be utilised by more than one group of native title holders. It is nevertheless important that the requirements of s 59A are fulfilled. It is apparent from Mr Wells's affidavit that Top End Default PBC seeks to satisfy those requirements by obtaining a form of "standing" approval from common law holders, when they nominate Top End Default PBC as their agent prescribed body corporate, to its future nomination by other common law holders. There is no submission from the Northern Territory suggesting that a "standing" approval is insufficient to satisfy the requirements of s 59A. In the circumstances, I am satisfied on the basis of Mr Wells's evidence that s 59A has been complied with. The Court expects that the NLC and Top End Default PBC will continue to be diligent in ensuring compliance with s 59A and, in future native title determinations for which Top End Default PBC is nominated as the agent prescribed body corporate, provide the Court with appropriate evidentiary confirmation of compliance.

[39]

Condition (d) - Court satisfied order is appropriate 65 As noted earlier, under each of ss 87 and 87A, the Court is empowered to make an order in, or consistent with, the terms agreed between the parties without holding a hearing if the Court is satisfied that it is appropriate to make the order. Factors that may be relevant to the exercise of the Court's discretion to make a determination of native title under ss 87 and 87A have been considered in many cases, including Munn at [28]-[33] (Emmett J); Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 at [20]-[23] (Branson J); and James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 at [4] (French J). Justice Mortimer gave comprehensive consideration to the issue of appropriateness in the context of s 87(1A) in Freddie and in Agius v State of South Australia (No 6) [2018] FCA 358 (Agius). At [63] of Agius, her Honour observed: The Court's function where there is agreement as to a determination of native title, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that: A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. (Emphasis added) 66 Her Honour summarised the role of the Court as follows: (a) The s 87(1A) role is quite different from the Court's role in contested hearings. The Court's focus is on the agreement between the parties: Lander v State of South Australia [2012] FCA 427 at [11] (Mansfield J); Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J) (Agius at [62]). (b) Satisfaction as to appropriateness must take into account the nature of the rights sought to be recognised in the determination, having operation against the whole world, including rights in rem. The orders should be clear in their terms and the process one which observes procedural fairness and is supported by the State's (or Territory's) agreement that a "credible and rational basis" for the determination has been made out (Agius at [64]). (c) The discretion as to appropriateness is wide but the Court must focus on the individual circumstances of each determination: Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (North J) (Agius at [65]). (d) The Court must also consider ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and pursue the objectives of those provisions promoting the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible: Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 at [12] (Jagot J) (Agius at [66]). (e) There must be some probative material to allow the Court to satisfy itself that the requirements of s 225 of the NTA are met. However, there is no requirement to file all of the material as the determination is based on the agreement entered into on a free and informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Bennett JJ) (Agius at [68]-[69]). (f) The Court is not required to conduct an enquiry on the merits, but must still be satisfied that the State made a reasonable and rational decision in entering the agreement: Brown v Northern Territory of Australia [2015] FCA 1268 at [23] (Mansfield J); King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ) (Agius at [70]-[71]). (g) The Court should be satisfied that the State (or Territory) came to the agreement after discharging its public responsibilities to the community it represents, including the applicants: Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 at [16] (Jagot J) (Agius at [72]). (h) The public interest in a settled outcome as opposed to an exhaustive contested process is considerable: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26] (Rares J) (Agius at [74]). (i) The flexibility of a settled outcome allows the State (or Territory) to take into account a wide range of matters including, for instance, the history of dispossession (Agius at [75]). 67 In the present case, I am satisfied that it is appropriate to make the consent determination for the following reasons. 68 First, the Agreed Facts establish that the agreement that has been reached between the parties is the culmination of a lengthy period of investigation and negotiation. 69 Second, all parties have been legally represented and there is no reason to doubt that the parties have made an informed decision to resolve the application by agreement. 70 Third, the Northern Territory, in its role of protecting the interests of the community generally, has been an active participant in the investigation and negotiation of the proposed consent determination. 71 Fourth, the Agreed Facts demonstrates that the agreement of the parties to the proposed consent determination has a reasonable and rational basis.

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (20)