Lynch on behalf of the members of the Alherramp/Rrweltyapet, Ilewerr, Mamp/Arrwek, Tywerl, Arrangkey, Anentyerr/Anenkerr and Ntyerlkem/Urapentye Estate Groups v Northern Territory of Australia

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 4 of 2011

BETWEEN: HUCKITTA LYNCH, LESLEY STAFFORD, ADRIAN DIXON NGWARRAY AND ORS ON BEHALF OF THE MEMBERS OF THE ALHERRAMP/RRWELTYAPET, ILEWERR, MAMP/ARRWEK, TYWERL, ARRANGKEY, ANENTYERR/ANENKERR AND NTYERLKEM/URAPENTYE ESTATE GROUPS

JUDGE: REEVES J DATE: 2 JULY 2013 PLACE: LARAMBA COMMUNITY

INTRODUCTION 1 The area that is the subject of this native title determination application comprises approximately 5,600 square kilometres of land situated approximately 200 kilometres north west of Alice Springs. Since late 2002, perpetual pastoral leases (PPL 1177 and 1178) issued under the Pastoral Land Act (NT) have existed over the entire claim area. That period of a little over 10 years is recent history in the context of the claimants' relationship with the land comprising the claim area. The claimants believe their spiritual ancestors fashioned that land a time long ago, during what is termed "Altyerr" in Anmatyerr, "Altyerre" in Arrernte or the "Dreaming" or "Dreamtime" in English. Recently, the parties, being the Applicant, the Northern Territory of Australia and Hiraji Pty Ltd, the holder of the pastoral lease, have informed the Court that they have agreed on the terms of a proposed consent determination under s 87 of the Native Title Act 1993 (Cth) (the Act). 2 As is the practice of the Court in dealing with native title claims over pastoral leases in the Northern Territory, this matter has been assigned the short title of "Napperby": the name of the pastoral lease. While the current form of the Napperby native title claim has only been on foot for approximately 27 months, a predecessor to the current claim was filed on 12 April 2005 (the first claim). That claim appears to have been prompted by an application for an exploration licence over a part of the pastoral lease. Accordingly, the first claim only extended to the area of the pastoral lease affected by that notice. 3 On 29 March 2011, after the necessary anthropological research had been undertaken, the first claim was discontinued. That same day, the current native title determination application was filed. That application claimed all of the land within the Napperby pastoral lease and part of the North-West Stock Route, located within the boundaries of the pastoral lease. To reflect the fact that this was the second claim relating to that pastoral lease, the epitaph of "#2" was added to the short title. 4 Under the current native title determination application, the authorised Applicant is comprised of the following members: (a) Huckitta Lynch (b) Lesley Stafford (c) Adrian Dixon Ngwarray. 5 The authorised Applicant represents the Alherramp/Rrweltyapet, Ilewerr, Mamp/Arrwek, Tywerl, Arrangkey, Anentyerr/Anenkerr and Ntyerlkem/Urapentye estate groups. 6 Despite the short lifespan of the current claim, negotiations for a consent determination of native title for Napperby have been progressing for some years. In February 2013, after the anthropological materials necessary to establish the native title claim group's connection with the claim area had been provided to the Northern Territory and a conference of experts had been held, the Northern Territory accepted there was a proper basis for it to enter into final negotiations for a consent determination of native title. On 31 May 2013, the parties filed draft executed consent orders, joint agreed facts and joint submissions. In those materials, the parties requested the Court to make a determination of native title in the terms of their agreement under s 87 of the Act. On 24 June 2013, they filed that agreement in final form.

SECTION 87 OF THE ACT 7 Section 87 of the Act empowers the Court to make an order consistent with the terms of a written agreement between the parties to native title proceedings without holding a hearing in the proceedings. Before the Court can exercise that power, the conditions specified by s 87(1) must be satisfied. In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out the five conditions that the parties need to meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of these requirements and consider whether they have been met in this application. 8 The first requirement is that the notice period under s 66 of the Act must have ended: s 87(1). The Napperby #2 application was notified by the Registrar on 8 July 2011. The period specified in that notice expired on 26 October 2011. The first requirement has therefore been met. 9 The second requirement is that the agreement must relate to the whole of the proceedings, part of the proceedings or a matter arising out of the proceedings: s 87(1)(a). The consent orders filed with the Court demonstrate that the agreement relates to the whole of this proceeding. This requirement has therefore been met. 10 The third requirement is that the agreement must be reduced to writing, signed by the parties and filed with the Court: s 87(1)(b). As noted above, executed consent orders have been filed with the Court. This requirement has also been satisfied. 11 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I stated (at [4]): An order will be within the power of the Court if it is consistent with s 94A of the Act, the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination. 12 Section 94A requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the Act. Section 225 defines "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. (Emphasis in original.) 13 I have examined the proposed consent determination as outlined in the consent orders executed by the parties. I am satisfied that each of the matters referred to in s 225(a) to (e) of the Act (above) is appropriately articulated therein and the rights and interests so described are recognisable by the common law of Australia. 14 The history of the Napperby #2 application set out above at [1]-[6] demonstrates that the previous claim over Napperby was discontinued before it was determined. Based on the records of the National Native Title Register kept under Pt 8 of the Act, I am satisfied that no previous or subsequent determination of native title has been made over the area the subject of this proposed consent determination. 15 I am therefore satisfied that a determination in the terms sought by the parties would be within the power of the Court. 16 Finally, before the Court makes a determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the Act. In Nelson, I noted (at [7]) that these words: … have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28]. 17 After canvassing the authorities relevant to the Court's determination of this question, I identified (at [14]) the following principles: (a) the central issue is whether there exists a free and informed agreement between the parties; (b) in determining whether such an agreement exists, the following factors will be critical: (i) the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title; (ii) whether the parties have independent and competent legal representation; (iii) whether the terms of the proposed order are unambiguous and clear; and (iv) whether the agreement has been preceded by a mediation process. 18 In their joint submissions, the parties submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because: (a) each party is legally represented; (b) the Northern Territory, acting on behalf of the community generally, has played an active role in the negotiation of the agreement; (c) the Northern Territory has conducted a thorough assessment process, which has included an extensive review of the anthropological materials relating to connection and searches to determine the extent of any other interests that may exist within the determination area; (d) after those negotiations and that assessment process, and having regard to the requirements of the Act, the Northern Territory is satisfied that the determination is justified in all the circumstances. 19 I have examined the executed consent order filed by the parties and I consider that its terms are unambiguous and clear. 20 Having regard to the factors I summarised in Nelson (outlined at [17] above), the parties' joint submissions in support of the consent determination and my review of the terms of the executed order filed with the Court, I am satisfied that it is appropriate to make the proposed consent determination.

PRESCRIBED BODY CORPORATE 21 Order 2 of the proposed consent determination is to the effect that the native title is not to be held on trust. Accordingly, the need for a nomination under s 56 of the Act does not arise. In these circumstances, s 57(2) of the Act requires the Court to take certain steps to determine which prescribed body corporate is to perform the functions mentioned in s 57(3). The s 87 agreement signed by the parties seeks a determination that the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57(2) to perform the functions set out in s 57(3). That nomination is supported by the affidavit of Elly Patira affirmed 21 June 2013. Ms Patira deposes that the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation was nominated by the claim group to be their prescribed body corporate on 23 May 2013 and that the members of the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation consent to being so nominated. 22 Accordingly, the Court determines that the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57(2) and that it is to perform the functions set out in s 57(3) of the Act.

CONCLUSION 23 In conclusion, it is important to record that one of the central objects of the Act is to resolve native title claims by negotiation and agreement. The negotiations and agreement leading to this consent determination therefore serve to advance that object. I congratulate the parties for reaching the agreement to achieve this consent determination in these proceedings. 24 Of course, native title has existed in this land, according to the traditional laws and customs of the seven estate groups, long before it was given the name Napperby. It follows that the orders that will now be made do not create native title in the claim area. Instead, by this consent determination, the Australian legal system recognises that long held and pre-existing native title. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.