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[2016] FCA 685
Federal Court of Australia
2016-06-15
Rangiah J
Original judgment source is linked above.
THE COURT NOTES THAT: A. The applicant in this proceeding NTD6/2013 has made a native title determination application ("the application") that relates to an area of land and waters which is the subject of a determination of native title ("the determination"). B. The applicant and the respondents ("the parties") and Paradigm Investments Pty Ltd have reached agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the application ("the Determination Area"). The external boundaries of the Determination Area are described in Schedule A and depicted on the map at Schedule B of the determination. C. Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) ("the Act") the parties hereby file with this Court their agreement in writing. D. Pursuant to ss 87 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. E. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as provided by the determination. F. The parties have requested that the Court hear and determine this proceeding in accordance with their agreement. BEING SATISFIED that a determination of native title in the terms set out in the determination in respect of this proceeding would be within power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the Act and by the consent of the parties: THE COURT ORDERS THAT:
(f) the rights and interests of Telstra Corporation Limited: (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth)(now repealed), Telecommunications Act 1975 (Cth)(now repealed), Australian Telecommunications Corporation Act 1989 (Cth)(now repealed), Telecommunications Act 1991 (Cth)(now repealed) and under Sch 3 to the Telecommunications Act 1997 (Cth), including the right: A. to inspect land; B. to install and operate telecommunication facilities; and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; (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 in the Determination Area. (g) NT Portion 727 - the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases set out in ss 38(2) to (6) of the Pastoral Land Act 1992 (NT); (h) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (i) 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; (j) 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 11. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 in relation to NT Portion 1607 and paragraph 7 in relation to NT Portions 727 and 4284 (part) is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 10, 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 12. 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)(now repealed)). 13. 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) "flowing water" means: (iii) water which flows, whether permanently, intermittently or occasionally within any river, creek, stream, watercourse or natural channel; and (iv) any natural collection of water into, through, or out of which a river, creek, stream, watercourse or natural channel flows; (c) "natural channel" includes a spring or rockhole; (d) "waters" has the same meaning as in the Act and includes flowing and subterranean waters. 14. Unless the contrary intention appears, a word or expression used in the Act has the same meaning in this determination as it has in the Act. SCHEDULE A - DETERMINATION AREA
RANGIAH J: 1 On 22 May 2013, the applicant on behalf of the Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and those persons with rights and interests in the area of land and waters known as Kwerlerrethe filed in the Federal Court of Australia a native title determination application over the land and waters within the bounds of the Narwietooma Pastoral Lease (NT Portion 727; Perpetual Pastoral Lease No. 1019), NT Portion 1607 and part of NT Portion 4284 ("the application"). 2 The applicant consists of Cleophanus (Lofty) Katakarinja, Carl Inkamala, Huckitta Lynch, Rhonda Inkamala, Stewart Pareroultja, Gloria McCormack, Jean Mack and Ronnie MacNamarra. The sole respondent named in the original application was the Northern Territory. On 31 December 2013, Christopher Anthony Connellan was joined as the second respondent. On 5 February 2016, Anthony Woodley Davis and Pamela Ruth Davis were added as the third respondent. 3 On 11 March 2016, Reeves J granted the applicant leave to amend the native title determination application. 4 There are three areas over which the determination is sought: (a) NT Portion 727 comprising an area 2,590 square kilometres held under Perpetual Pastoral Lease No. 1019; (b) NT Portion 1607 comprising an area of 28 hectares 1,100 square metres located within the boundaries of NT Portion 1224 being Crown land containing part of the channel of Dashwood Creek; and (c) Part of NT Portion 4284 comprising an area of 31 square kilometres located within the boundaries of NT Portion 727 which is Crown land, being part of the North West Stock Route.
The Native Title Act 5 The Native Title Act 1993 (Cth) ("the Act") was enacted for the purpose of recognising and protecting native title, to establish ways in which future dealings in relation to native title should proceed and set standards for those dealings, and to establish a mechanism for determining claims for native title. 6 One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That has been facilitated by the amendments to s 87 by the Native Title Amendment Act 2009 (Cth). It is appropriate, therefore, that this application and the related applications have resulted in the parties agreeing to the terms of orders to be made by consent pursuant to s 87 of the Act. 7 The preamble to the Act recognises, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many many years prior to European settlement, and that the Aboriginal peoples were progressively dispossessed of their lands. It records that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications were and are the traditional owners of that land. By the Court's orders, the Australian community collectively recognises that status. It is important to emphasise that the Court's orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement. 8 The determination of native title rights and interests is important to the applicant and to the landholding estate groups because it is a recognition by the Court on behalf of the Australian community that their ancestors occupied this country since prior to European settlement. The orders that the Court is about to make today are a recognition that they enjoy such rights as the traditional owners of the land, and have done so since before sovereignty. 9 The application before the Court is not an application seeking the Court grant the applicant the native title rights, but an application that the Court make declarations that such native title rights exist.
The Western Arrernte and Anmatyerr people, their society and history 10 The applicant has filed an anthropological report prepared by Dr Anna Kenny. Important evidence in relation to the current exercise of traditional rights and interest has been provided in affidavit form by members of the claim group, Cleophanus (Lofty) Katakarinja, Carl Inkamala, Huckitta Lynch, Rhonda Inkamala, Stewart Pareroultja, Gloria McCormack, Jean Mack and Ronnie MacNamarra. The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance: Sampi v Western Australia [2005] FCA 777 at [48] per French J. 11 The affidavits and the anthropological report are important, not only for this case, but as records of the history of the Western Arrernte and Anmatyerr people. They deserve to be read in full. For present purposes, I can only provide a brief summary of the evidence before the Court. 12 The evidence establishes that the Western Arrernte and Anmatyerr people are descendants of people who occupied the Determination Area prior to sovereignty. The claimant group has been able to maintain traditional laws and customs relating to land, clearly reflected in their knowledge of mythology and their land tenure system. The native title holders share subsection systems, moieties, descent ideology, intermarriage, initiation ceremonies, cosmology, mythology (with localised differences) and reciprocal recognition of territorial rights. They have also continued using, caring for and making decisions about the Determination Area under traditional laws and customs. 13 The anthropological evidence includes material addressing the nature and content of the rights and interests possess by the Western Arrernte and Anmatyerr people under traditional laws and customs. The landholding group members: …hunt game, harvest bush foods and medicines and collect wood…[They] maintain the integrity of the land by following, holding and transmitting religious and secular rights, responsibilities and knowledge in accordance with their traditional laws and customs. This includes the holding of ceremonies. 14 Dr Anna Kenny describes the process by which landholding group elders: …ensure that obligations towards land, dreamings and spirits are maintained, that necessary knowledge is transmitted, and that ceremonies, songs, dances and designs are properly performed. This system of teaching and learning is intended to guarantee the continuity of traditional laws and customs and their observance by future generations. The Anthropological Report emphasises the continuity of Altyerre (dreaming) stories from generation to generation, subject to differing localised emphases. 15 The evidence demonstrates that the Western Arrernte and Anmatyerr people have held rights and interests in the Determination Area under their traditional laws and customs prior to sovereignty and have continued to do so to the present time. They have also continued to exist as a society. 16 The primary holders of the native title rights and interests are comprised of the members of seven landholding groups: (a) the Imperlknge landholding group; (b) the Urlatherrke landholding group; (c) the Parerrule landholding group; (d) the Yaperlpe landholding group; (e) the Urlampe landholding group; (f) the Lwekerreye landholding group; (g) the Ilewerr landholding group. 17 Each of those landholding groups includes persons who are members of the group by reason that they: (a) are members of one or more of the landholding groups referred to in paragraph 16 by virtue of descent (including adoption) through father's father, mother's father, father's mother and mother's mother; (b) are accepted as members of one or more of the landholding groups referred to in paragraph 16 by senior members of a landholding group, referred to in subparagraph (a), by virtue of the following non-descent connections to an estate: (i) conception in and/or birthplace affiliation with an estate; (ii) long-term residence in an estate; (iii) possession of secular and traditional spiritual knowledge, authority and responsibility for an estate or surrounding country, in particular, knowledge of sites and their mythology; and (iv) authority and responsibility for shared Dreaming tracks and/or places of significance connected with an estate. These persons are collectively referred to as "the landholding group members".
The rights and interests 18 In relation to NT Portion 1607, where any prior extinguishment of native title must be disregarded pursuant to s 47B(2) of Act, the native title rights and interests are: (a) the right to possession, occupation, use and enjoyment of the land to the exclusion of all others except in relation to flowing and subterranean waters; and (b) in relation to flowing and subterranean waters, the right to use those waters, including the right to: (i) hunt on, gather and fish from; and (ii) to take and use; the flowing and subterranean waters in accordance with their traditional laws and customs for personal and communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose. 19 In relation to NT Portions 727 and 4284 (part) the native title rights and interests of the native title holders are the rights possessed under and exercisable in accordance with their traditional laws and customs, including the right to conduct activities necessary to give effect to them, being: (a) the right to access and travel over any part of the land and waters; (b) the right to live on the land, and for that purpose, to camp, erect shelters and other structures; (c) the right to hunt, gather and fish on the land and waters; (d) the right to take and use the natural resources of the land and waters; (e) the right to access, take and use natural water on or in the land, except water captured by the holders of Perpetual Pastoral Lease No. 1019; (f) the right to light fires for domestic purposes, but not for the clearance of vegetation; (g) the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources; (h) the right to access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs; (i) the right to conduct and participate in the following activities on the land and waters: (i) cultural activities; (ii) ceremonies; (iii) meetings; (iv) cultural practices relating to birth and death including burial rites; (v) teaching the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs, and, subject to the rights of any person arising under the laws in force in the Northern Territory to be present on the land, the right to privacy in the exercise and enjoyment of those activities; (j) the right to speak for and make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders; (k) the right to be accompanied on the land and waters by persons who, though not native title holders, are: (i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the land and waters; (ii) people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the native title holders; (iii) people required by the native title holders to assist in, observe, or record traditional activities on the areas. 20 The native title rights and interests referred to in paragraph 19 do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others. 21 The native title rights and interests are subject to and exercisable in accordance with: (a) the valid laws of the Northern Territory of Australia and the Commonwealth of Australia; (b) the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose.
The s 87 agreement 22 The parties have approached the Court asking the Court to act under s 87 of the Act and make orders in accordance with the agreed terms between the parties. 23 In support of this application, the parties have filed the following documents: (a) Minute of Proposed Orders and Determination of Native Title by consent. (b) Statement of Joint Agreed Facts by the applicant and the first respondent. (c) Joint Submissions of the applicant and the first respondent. 24 Section 87 of the Act empowers a court at any stage of proceedings after the end of the period specified in any notice given under s 66 of the Act if it appears to be appropriate to do so, to make an order consistent with the terms of an agreement between the parties to the proceeding without holding a hearing in relation to the application. 25 The conditions under which s 87 enables the Court to make such a determination without a hearing are: (a) the period specified in the notice given under s 66 of the Act has ended and there is an agreement between all of the parties on the terms of a proposed order of the Court in relation to the proceedings: s 87(1)(a); (b) the terms of the proposed determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court: s 87(1)(b); (c) the Court is satisfied that an order in, or consistent with, those terms would be within its power: s 87(1)(c); and (d) the Court considers that it would be appropriate to make the orders sought: s 87(1A) and (2). 26 In addition to those matters, the Court must have regard to the following before making determinations of native title by consent: (a) whether all parties likely to be affected by an order have had independent and competent legal representation; (b) whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the state in which the land is situated; (c) whether all of the requirements of the Act have been complied with. 27 The Act is designed to encourage parties to an application to take responsibility for resolving proceedings without the need for the Court's intervention by way of a hearing. 28 For that reason, when the Court is examining the appropriateness of an agreement reached between the parties, the focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36] to [37] that: The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 29 The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. 30 State and Territory governments have the responsibility of ensuring that the community's interests are protected by involving themselves in a process which can assess the underlying evidence as to the existence of native title. In this case, the Northern Territory is satisfied that the group to be recognised as the holders of native title rights and interests is an appropriate one, that it is appropriate to recognise the native title rights and interests proposed, and that in other respects it would be appropriate for the Northern Territory to enter into the determination. 31 On 25 June 2013, the applicant provided the first respondent with its first anthropological report and Dreaming and Site Map by Dr Anna Kenny ("the Anthropological Report"). This was peer reviewed by Mr Jeffery Stead, a consultant anthropologist engaged by the first respondent. In response to comments made by Mr Stead, the applicant provided the first respondent with a Supplementary Anthropological Report of Dr Anna Kenny dated 15 September 2015 ("the First Supplementary Anthropological Report"). This was also reviewed by Mr Stead. In response to comments made by Mr Stead about the First Supplementary Anthropological Report, the applicant provided the first respondent with a further Supplementary Anthropological Report of Dr Anna Kenny dated 4 June 2015 ("the Second Supplementary Anthropological Report"). Ultimately, the parties reached agreement regarding all outstanding anthropological issues. 32 The Anthropological Report and the Supplementary Anthropological reports and other materials were assessed against criteria agreed by the parties as satisfying the requirements of s 223 of the Act. The Anthropological Report also complied with Federal Court Practice Note CM7, including as to the completeness of the enquiries made in relation to preparing the report. 33 The applicant and the first respondent reached agreement that the native title claim group is comprised of persons who hold non-exclusive native title rights and interests within the meaning of s 223(1) of the Act in the Determination Area, with the exception of NT Portion 1607 where the native title rights and interests are exclusive in nature. 34 On 26 November 2013, the first respondent provided to the applicant a letter attaching the "Tenure and Public Works Extinguishment Table" which contained an analysis of the extinguishment of native title in the Determination Area based upon the grant of tenure and public works (the "First Respondent's Extinguishment Contentions"). The first respondent and the applicant subsequently exchanged further correspondence in relation to various land tenure and public works issues. 35 The applicant and the first respondent reached agreement as to those parts of the Determination Area in which native title does and does not exist. 36 The applicant and the first respondent have agreed to a list of commonly occurring government constructed public works within the Determination Area which were constructed or established or commenced to be constructed or established on or before 23 December 1996 and that wholly extinguish native title (including over adjacent land or waters as defined in s 251D of the Act). That list is included in Schedule C of the orders. 37 The applicant and the first respondent agree that s 47B applies in relation to NT Portion 1607, such that the native title rights and interests over that part of the Determination Area are exclusive in nature. 38 The second and third respondents do not dispute any of the matters I have referred to. 39 The Act refers to the rights and interests as defined in s 223 as being in relation to land and waters, which are the subject matter of the application. The characteristics of the native title rights and interests are: (a) the rights and interests that are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned; (b) those traditional laws and customs must have a connection with the land or waters the subject of the application; and (c) the rights and interests must be recognised by the common law of Australia. 40 Section 225(a) prescribes one criterion for the determination, namely that it sets out who are the persons, in each group of persons, holding the common or group rights comprised in the native title area. I accept the submission of the parties that, by the details referred to in paragraphs 16 and 17 and in the determination, that prescription is satisfied. 41 I am also satisfied that the determination identifies the nature and extent of the native title rights and interests in relation to the Determination Area, as required by s 225(b). 42 It is also necessary, by reason of ss 225(c), (d) and (e), to ensure that the determination identifies the nature and extent of any other interests in relation to the Determination Area and the relationships between the native title rights and interests and those other interests. It clearly does so. 43 The material shows that those matters have also followed from a careful process. It has involved consideration of the respective positions of the applicant, the respondents, and others including Crossland Nickel Pty Ltd, Legend International Investment Pty Ltd, Paradigm Investments Pty Ltd, Panconoz Pty Ltd and Telstra Corporation Ltd, over a period of time. Ultimately agreement was reached on those issues. 44 As to the more formal matters, I am satisfied that s 87 of the Act has been satisfied in relation to this application. In particular, I note that: (a) the period specified in the notice given under s 66 ended on 24 December 2013 (s 87(1)); (b) the parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i)); (c) the parties have recorded their agreement in the Minute presented to the Court (s 87(1)(b)); and (d) an order in terms of or consistent with the Minute would be within the Court's power because: (i) the application is valid and was made in accordance with s 61 of the Act; (ii) the application is for a determination of native title in relation to an area for which there was no approved determination of native title (s 13(1)(a)); (iii) the Minute agreed to by the parties complies with ss 94A and 225 of the Act (s 87(1)(c)). 45 In my opinion, it is also appropriate that the Court make the orders sought because: (a) the parties are legally represented; (b) the Northern Territory obtained searches of land tenure and mining and other relevant interests to determine the extent of "other interests" within the Determination Area and provided copies of those searches to all parties; (c) the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described more particularly above; (d) there are no other proceedings before the Court relating to native title determination applications to cover any part of the area the subject of the application which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and (2)); (e) the Northern Territory has played an active role in the negotiation of the determination and, in doing so, the Northern Territory acting on behalf of the community generally, is satisfied that the determination is justified in all the circumstances.
Prescribed Body Corporate 46 Section 55 of the Act requires the Court to make such determinations as are required by ss 56 and 57 at the same time as or as soon as practicable after the determination. Order 3 of these orders states that the Wala Aboriginal Corporation (ICN: 7855) is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act to perform the functions set out in s 57(1). 47 The nomination is supported by the affidavit of Susan Jane Polden affirmed on 24 May 2016, which deposed that a meeting of the native title holders was held on 11 March 2013. At that meeting, the members of the Wala Aboriginal Corporation instructed a solicitor from the Central Land Council that they consent to becoming the prescribed body corporate for the purposes of s 56(2)(a) of the Act. 48 Accordingly, the Court determines that the Wala Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 56(1) of the Act. 49 For the reasons outlined above, I will make the orders agreed upon by the parties. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.
Katakarinja on behalf of Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and those persons with rights and interests in the area of land and waters known as Kwerlerrethe
Northern Territory of Australia