Miller v Northern Territory of Australia

REASONS FOR JUDGMENT 1 This application, made on 30 July 2014 for recognition of native title rights and interests over the area of what is called the Mallapunyah Springs Pastoral Lease, with one reservation, is ready to proceed to a consent determination. 2 The reservation concerns the description of the claim group. There is a need to address that issue before any proposed consent determination, because in the final step of securing the consent of all parties to the proposed consent determination, one party declined to give its consent to the proposed determination. 3 That issue arose only very recently. 4 When the application was duly notified, Mallapunyah Springs Pty Ltd, Go West Cattle Co Pty Ltd and Battlin Cattle Co Pty Ltd (together, the Pastoral Lease Respondent) lodged a Notice of Intention to Become a Party pursuant to s 84 of the Native Title Act 1993 (Cth) (the Act). The interest claimed was expressed in the following terms: Mallapunyah Springs settled by Darcy Family 1928, operated by Darcy Family since that year. Mallapunyah Springs is sub-leased to Go West Cattle Co Pty Ltd and Battlin Cattle Co Pty Ltd, which companies are both operated by Darcy Family members. The contact person was identified as Louise Martin, with contact details. The form was signed by Directors of each of the three companies, including Kerry Darcy. The Form is dated 16 October 2014. 5 I accept that the Pastoral Lease Respondent represents the primary lessee and the sub-lessees of the Mallapunyah Springs Pastoral Lease. I also accept that Ms Darcy is a Director of Battlin Cattle Co Pty Ltd, and is entitled to speak for the Pastoral Lease Respondent. She confirmed orally that Mallapunyah Springs Pastoral Lease has been operated by the Darcy family since 1928. 6 The issue arose in early November 2015, when the proposed consent determination was sent to the parties for the endorsement of their anticipated consent to the proposed orders. All parties consented, other than the Pastoral Lease Respondent. Ms Darcy contacted the Registry to indicate that she was not prepared to sign the proposed consent determination. Accordingly, the matter was called on for directions. Prior to that time, a case management conference had been conducted on 28 April 2015 when this claim (and others in the adjacent geographical areas) were addressed in the context of them all progressing towards a consent determination. Ms Darcy was present at that time. She did not then signal the concerns that she presently has, although it may be that she did not then fully appreciate the nature of the process leading to a consent determination. 7 In any event, Ms Darcy at the directions hearing indicated that the Pastoral Lease Respondent was not prepared formally to consent to the proposed consent determination, because she did not accept that the description of the native title claim group to be recognised as the holders of native title rights and interests in the area of the Mallapunyah Springs Pastoral Lease was correctly described. She said that the Pastoral Lease Respondent had for many years provided work to, and had a close working relationship with indigenous families that live in the Mallapunyah Springs Pastoral Lease area, principally the Raggett family, and that the members of that family were more appropriately recognised as the holders of such native title rights and interests in the Mallapunyah Springs Pastoral Lease area rather than the proposed nominated native title holding group. 8 In view of the proximity of the proposed consent determination (as one of the group of consent determinations over a much wider geographical area in the vicinity of and adjacent to the Mallapunyah Springs Pastoral Lease then scheduled for 26 November 2015), and in view of what Ms Darcy said at that directions hearing, I gave directions that the question of who is the correct Aboriginal holders of native title over the area of the Mallapunyah Springs Pastoral Lease area be heard and determined on the papers, and I directed the applicant to file and serve such evidence as the applicant may be advised by 13 November 2015. I gave leave to any other party, if so advised, to give notice that that party proposed to adduce evidence directed to that question if that party did not accept what is presently recorded in the proposed consent determination, and I fixed a later time for the filing and service of any such evidence. No party has given any notice of an intention to adduce any contradictory evidence to that relied upon by the applicant. Consequently, it is appropriate to proceed to address the reserved issue at this point in time. 9 In particular, Ms Darcy on behalf of the Pastoral Lease Respondent, despite her views referred to above, said that the Pastoral Lease Respondent did not intend to participate in any hearing on the issue and did not intend to adduce any evidence on the issue. In effect, she anticipated that - without consenting to the proposed determination - if the evidence otherwise available supported the proposed native title claim group, the Court might make a determination of the issue based on the applicant's evidence. 10 In view of her attitude, I did not consider that there was any prejudice to her by proceeding to a prompt hearing of the issue on the papers. Nor, being aware of the consent of all other respondent parties to the proposed consent determination, did I consider that the prompt determination of the issue on the papers would or could cause any unfairness to any of those respondents. Also, and perhaps equally importantly, I note that no person as a member of, or representative of, the Raggett family has given notice under s 84 seeking to be a party to the application, or has in any way indicated that the Raggett family or any member of it separately and discretely hold or might hold, to the exclusion of others, native title rights and interests in the Mallapunyah Springs Pastoral Lease area under the Act. 11 That may well be because the claim group as described included the Raggett family members. That is not apparent on the face of the description, but Dr Bennetts' report (referred to below) includes representative biographies of each of the two estate groups. The the Wuyaliya Warrgi estate group is said to have a special responsibility for a Warrgi (Dog) dreaming that passes north through the area of the Mullapunyah Springs Pastoral Lease area. In tracing the estate group's composition from the apical ancestor Dulumbangi, the succeeding generations are said to include Ronnie Raggett and Freddie Raggett and their children (11 are named, as well as five adopted children of Freddie Raggett). The detailed representative biographies include one from Ronnie Raggett Kanjirrijagana, born in 1947 and which refers to his father, Frederick Sony Raggett and his siblings; all of Ronnie's children are recorded there as having been born on Mallapunyah Springs. 12 With that background, it is now necessary to address the question. 13 The affidavit of Tamara Cole affirmed on 13 November 2015 explains the process by which the native title claim group proposed, and described in Schedule A of the application was determined. It was based upon an anthropological report prepared by Dr Stephen Bennetts, an anthropologist engaged on behalf of the applicant. It identifies (amongst other things) the Aboriginal group which, under the traditional laws acknowledged, and the traditional customs observed, possesses primary and secondary rights in the relevant area, the nature and extent of those native title rights and interests, and other matters. That report is dated 29 July 2014 and was provided on 13 August 2014 to the Northern Territory. Subsequently, the Northern Territory on 17 February 2015 responded to the applicant, attaching a peer review report of that anthropological report prepared by the consultant anthropologist, Emeritus Professor Basil Sansom and addressing the issues conveyed by Dr Bennetts' report. On 20 July 2015, the applicant responded to those issues raised by the Sansom report in a detailed document. Following that, on 12 August 2015, the Northern Territory advised that Emeritus Professor Sansom considered that the applicant, by that response, had addressed each of the issues raised in his report. 14 It was in the light of that exchange of views that the Northern Territory (along with the other respondents) indicated consent to the proposed determination, including the description of the native title claim group. 15 The process of evidence gathering and assessment appears to have been an appropriate one, based on the knowledge and experience of two respected anthropologists. 16 Upon that basis, I note that the applicant and the Northern Territory have filed a Statement of Joint Agreed Facts, including agreement that the native title claim group on whose behalf the application was made is comprised of the persons described in Schedule A of the application. That group also finds expression in clauses 5-8 of the proposed Determination. In particular, it is agreed that the holders of native title rights and interests in the relevant area are the members of two estate groups: (a) Rrumburriya Mararabarna estate group; and (b) Wuyaliya Warrgi estate group. The proposed determination asserts that the estate groups include persons who are members of the group by reason of patrilineal descent, either directly or through mother, father's mother or mother's mother having been a member of the group by reason of patrilineal descent, or by adoption or incorporation into the descent relationship. In addition, there are lesser rights by other persons described in proposed Orders 7 and 8 of the proposed consent determination. 17 I have separately reviewed the material referred to. The description of the claim group is in accordance with the report of Dr Bennetts of 29 July 2014, in particular at [4.1], and as then explained in considerable detail in [4.3]-[4.26]. I shall not repeat or refer to that material in detail. At the conclusion of his report, Dr Bennetts expresses the opinion that the Aboriginal groups and persons referred to (who are the same as the Aboriginal groups and persons named in the application as the claim group) possess the native title rights and interests claimed in relation to the Mallapunyah Springs Pastoral Lease area. Professor Sansom's peer review report at [88]-[93] raised certain queries in relation to Dr Bennetts' view as to the traditional Aboriginal holders of native title rights and interests in the Mallapunyah Springs Pastoral Lease area. In relation to those particular queries, the lengthy letter on behalf of the applicant to the Northern Territory of 20 July 2015 responds to those observations or queries, in particular at sections 5 and 6. It was in the light of Professor Sansom's further comments or advice to the Northern Territory that the Northern Territory then on 12 August 2015 indicated that, in relation to those issues, there was no longer any ongoing concern on the part of the Northern Territory and its consent to the proposed determination would be given. 18 I am fortified, to a degree, in that conclusion by the detailed content of Dr Burrow's report, including (as noted above) a review of apical ancestors and the succeeding generations, and representative and supportive biographies (including that of Ronnie Raggett). 19 On that material, I am satisfied that the native title claim group as described in Schedule A to the application, and now as reflected in orders 5 to 8 of the proposed determination does reflect the holders of native title rights and interests in the Mallapunyah Springs Pastoral Lease area. I so find. 20 Upon that finding, the proposed consent determination in other respects may proceed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.