The Applicable Principles
18 The requirement that the Court be satisfied that the order is "appropriate" is present in both s 87 and s 87A of the NTA. The applicable principles are the same.
19 I set out my consideration of what the Court requires in order to be satisfied that the order is "appropriate" in Davey on behalf of the Mayala #2 Native Title Claim Group v State of Western Australia [2019] FCA 1137 as follows:
[14] As I said in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 at [45], the focus of the Court is upon determining whether there is an agreement between the parties and whether that agreement was freely entered into on an informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Bennett J). As observed by North J in Ward v State of Western Australia [2006] FCA 1848 at [8]:
The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial …
[15] I also said in Jones at [44] that in determining where it is appropriate to make the determination sought by the parties, the Court exercises a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: Brown (on behalf of the Ngarla people) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J).
[16] Like Mortimer J in Freddie v Northern Territory [2017] FCA 867 at [20], I accept that it is also important to see the exercise of the judicial power in ss 87 and 87A of the NTA in the context of the Court's jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act.
[17] Further, in Brown v Northern Territory of Australia [2015] FCA 1268 at [23], in describing the task to be undertaken by the Court, Mansfield J said this:
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.
[18] The State has a public responsibility to ensure that its agreement to the order proposed is in the interests of the community it represents. That responsibility involves, but it is not limited to, satisfaction by the State that there is a sufficient basis for concluding that the proposed determination is capable of satisfying the requirements of s 225 of the Native Title Act. As Mortimer J said in Freddie:
23. … A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties' agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J.
24. The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, 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).
20 The requirements of s 87(2) of the NTA will likely be met where the Court is satisfied that a relevant government respondent - such as the Northern Territory of Australia - has, through competent legal representation, satisfied itself as to the cogency of the evidence upon which an applicant relies: Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 at [46] (Bromberg J). This requires the Court to have an understanding of the process that led to the agreement and, in particular, how the State or Territory went about assessing the underlying evidence as to the existence of native title. Other considerations relevant to whether a free and informed agreement has been reached between the parties include: whether the parties have independent and competent legal representation: Munn (for and on behalf of the Gunggari people) v State of Queensland (2001) 115 FCR 109 at [29] (Emmett J); Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [39]-[40] (North J); whether the terms of the proposed order are "unambiguous and certain as to the rights declared": Munn at [32] (Emmett J); and whether the agreement has been preceded by a mediation process: Nangkiriny v State of Western Australia [2004] FCA 1156 at [6] (North J); Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] (Branson J); Lovett at [41]-[42] (North J).
21 In their joint submissions, the Applicant and the Northern Territory of Australia submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because:
(a) The actively participating parties were legally represented throughout;
(b) The Northern Territory of Australia, as the First Respondent, had obtained searches of land tenure, mining and other relevant interests to determine the extent of "other interests" within the proposed 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 at paragraphs 8 to 15 of the Minute (s 225(c));
(d) There are no other proceedings before the Court relating to native title determination applications that cover any part of the claim area which would otherwise require orders to be made under s 67(1) of the NTA (s 87(1) and (2)); and
(e) The Northern Territory of Australia, as the First Respondent, has played an active role in the negotiation of the consent determination. In doing so, the Northern Territory of Australia, acting on behalf of the community generally, having had regard to the requirements of the NTA and having conducted a thorough assessment process, is satisfied that the proposed determination is justified in all the circumstances.
22 In the Statement of Joint Agreed Facts made by the Applicant and the First Respondent, it is stated that the agreement made between them was made on the basis of the materials and information in the Application, the affidavits which accompany the Application and the anthropological reports and other materials exchanged. A summary of the key factual matters which were agreed is set out in an annexure to the Statement of Joint Agreed Facts. The annexure provides a concise summary of the facts agreed relevant to the issue of connection. Although it involves some repetition of matters already discussed, it is convenient to set out those facts by including here the text of that annexure:
Statement of matters relevant to connection
The application area
1. The application area comprises the land and waters in the Erldunda (Warltunta), Lyndavale (Maratjura) and Curtin Springs (Tjulu) pastoral leases south-west of Alice Springs. The claim area is geographically located in the eastern Western Desert language region and associated with the Yankunytjatjara dialect.
Identity and composition of the native title claim group
2. The native title claim group consists of fifteen (15) family groups who are members of the Western Desert cultural bloc, a society whose members observe a common body of traditional laws and customs that among other things govern the acquisition, maintenance and transmission of interests in land. The body of traditional Western Desert laws and customs constitutes a normative system that existed at sovereignty and continues to be observed today.
3. In the Western Desert, rights and interests (including ownership and control) in country and resources are held by those who, in accordance with traditional laws and customs, are recognised as 'nguraritja', meaning someone who belongs to a place. Accordingly, it denotes specific people, or groups of people, as belonging to particular tracts of country.
4. Members of the claimant group believe that their system of laws and customs is founded in the Tjukurpa (Dreamtime/Dreaming), a time in the distant past during which ancestral beings travelled across the landscape bringing all aspects of the physical world into being, including geographic features, plants and animals. The Tjukurpa is the source of the claimants' social, cultural, jural and ritual institutions. It provides the intellectual, spiritual and political basis by which individuals define and negotiate rights in land and governs the distribution of their rights and interests in country. The claimants' belief system is centred in the Dreaming and the Law, which together are the foundation of the normative system which governs customary behaviour and the possession of rights and interests in land.
5. The claimants are nguraritja for the country within the claim area and more specifically possess rights and interests in one or more focal areas or tracts of country containing Tjukurpa sites associated with a particular Dreaming or Dreamings.
Land tenure system
6. Members of the Western Desert society who are acknowledged and accepted as holding rights and interests in particular tracts of country speak of themselves and are recognised by others as 'nguraritja'. Nguraritja assert connection to land and derive their authority to speak for tracts of country from their unique relationship with ancestral beings believed to reside in the land.
7. Nguraritja for country are the persons who have a spiritual connection to an area and to the Tjukurpa associated with it by virtue of, usually one or more of:
(a) birth on or near the area or a Dreaming track that crosses the area;
(b) close kin or an ancestor having a connection to the area (including through birth or long-term association);
(c) adoption by a claimant or a claimant's ancestor;
(d) knowledge of the physical landscape of the area and its sites and Dreamings;
(e) caring for the physical and spiritual attributes of the area;
(f) long-term association with the area;
(g) burial of close kin on or near the area,
and they are recognised by other nguraritja as having rights and interests in the area under the traditional laws and customs of the Western Desert.
8. To possess rights and interests in country (and to assert such rights) nguraritja rights must also be activated, for example, through visitation or occupation of country, participation in ceremony, acquiring ritual knowledge, involvement in caring for, and making decisions about, country.
9. Because the traditional principles of land tenure operating in the Western Desert recognise multiple pathways by which people may become nguraritja, individuals may lawfully assert rights and interests in more than one tract of country, and these may be geographically discontinuous. Another consequence of this system of land tenure is that people's rights and interests in country can overlap. Furthermore, the bases for recognition of landownership are cumulative so that individuals who possess multiple links to country can acquire stronger support from the wider community of nguraritja for the area concerned in asserting their rights and interests.
10. The people who are, in aggregate, nguraritja for a particular area are considered the owners of that area, under Western Desert laws and customs.
Connection to the application area
11. The following paragraphs contain examples of the claimants' ongoing connection with, and occupation and use of, lands and waters in and around the application area. It is by no means an exhaustive list of the senior members of the native title claim group.
12. David Wongaway is nguraritja for Warltunta (Erldunda) and Maratjura (Lyndavale). David was born in 1957 on Palmer Valley Station adjacent to Erldunda. His three siblings and other close kin were born on Erldunda. His father was initiated at MARATJURA on Lyndavale and both he and David lived and worked on Erldunda. David is knowledgeable of sacred sites and Dreamings on Erldunda and Lyndavale. Until recently, he lived at Imanpa Community (adjacent to Lyndavale) and continues to travel to the country, care for sites such as ARINPARA (Erldunda) and KULATA (Lyndavale) and associated Dreamings, and hunt on Lyndavale and Erldunda. David teaches younger claimants, including his children, about sites and Dreamings on the Application Area. He says he often takes them hunting for kangaroo around KULATA (on Lyndavale) and teaches them about Tjukurpa.
I go hunting everywhere on Erldunda. Every part of it is good for hunting. … We camp out on the country. These days we might stay for the weekend, maybe two nights, when we can get a good car. We just camp in the bush. We like to go to Kulata on Erldunda, camp and tell stories. … We take kids out on country, have a fire and talk stories with them. Old time stories we can tell them. They really listen then - good stories. It's important to tell the kids those stories about country. We taught our kids those things, and they have to tell their kids now. (Application Affidavit, paragraphs 39, 44-45)
13. Kathleen Luckey is nguraritja for Warltunta (Erldunda) and Maratjura (Lyndavale). Kathleen was born in 1959 and grew up on Erldunda where her father, father's mother and brother were born and are now buried. Her father and brother both worked on Lyndavale. Kathy is knowledgeable of the sites and Dreamings on Erldunda where she looks after the burial, cultural sites and rockholes, including ARINPARA and ULBULLA. She continues to transmit her knowledge of mythology, in particular the Kuniya (Carpet Snake) Tjukurpa, to her children. With her husband David Wongaway, Kathy and their family regularly camp and hunt on Erldunda; Kathy continues to teach her grandchildren where to find bush tucker including mangata (quandong), tjala (honey ants) and maku (witchetty grubs).
14. Margaret Smith is nguraritja for Warltunta (Erldunda) and Maratjura (Lyndavale). Margaret was born in 1955 at WARLTUNTA on Erldunda on the Kuniya (Carpet Snake) Tjukurpa. Her mother was born on or adjacent to Lyndavale and her uncle (mother's brother) at PULKURU on Lyndavale. Margaret and other close kin also grew up on Erldunda and she says her children know the Kuniya Tjukurpa and have been taught about their country 'since they were born from mothers, fathers and grandparents. All family'. Margaret and her children and grandchildren travel around Erldunda and continue to go there camping, hunting and collecting bush tucker. Margaret continues to care for and protect country, for example, through the clearing and tending of graves at the cemetery and burial sites in the sandhills behind the cemetery (at Erldunda) and cleaning out rockholes including ULBULLA and ARINPARA.
I live in Alice Springs now, and we still go out to that country on weekends today. We go for kangaroo; we collect mangata (quandong) - there are a lot of quandong trees around the south of Erldunda station. And go for maku (witchetty grubs), bush tomato, bush raisins. Just the same as when I was little, but now we can go in car and get it. Where there is a place with good greenery, that's where we will go. (Application Affidavit, paragraph 28)
15. Malya Teamay is nguraritja for Maratjura (Lyndavale) and Tjulu (Curtin Springs). Malya was born in 1947 at PAKU PAKU, a Kuniya Tjukurpa site on Lyndavale Station. His brother was born at ANARI on Curtin Springs and with his father, mother, brothers and sisters lived at PULKURU, ANARI and TJULU (Curtin Springs). Malya cares for country from Erldunda to Curtin Springs, including men's Tjukurpa at PURRARA (Curtin Springs). Malya acquired knowledge about country on Curtin Springs including AMIRRIRI, ANARI, TJULU, PURRARA and ININTI from his older brothers while working as a stockman and now passes on his knowledge to younger claimants during ceremonies and while travelling across the application area.
I have grandkids now and I like to take them out camping to show them my country and teach them the Tjukurpa. … I still go out hunting and collecting bush foods and medicines from my country. I know how to hunt with a spear because I was taught by the tjilpis (old men) a long time ago, but these days I have a rifle for hunting. I know how to find the kuka (meat) from the malu [kangaroo], bush turkeys, ngintaka (large lizard) and lots of other things. I know how to dig for the maku (witchetty grub) and where to find the tjala (honey ants). We get the ngintaka eggs in the proper season. We know where to find them and we can take them with us. Only us ngurraritja can hunt there on Lyndavale. … These days, I am also sharing my Tjukurpa on the canvas. I paint the Dreaming track for the Minyma Kuniya. I only paint the public stories. If people want to buy my artwork they can. (Application Affidavit, paragraphs 14, 33 and 37)
16. Niningka Lewis is nguraritja for Tjulu (Curtin Springs) and Maratjura (Lyndavale). Niningka's parents lived and worked at Curtin Springs and Lyndavale where she and her siblings, Pantjiti Lionel, Alec Minutjukur, Malya Teamay and Mr N Minutjukur (recently deceased) grew up. Mr N Minutjukur was born at ANARI, southeast of ATILA on Curtin Springs. Niningka is a knowledgeable senior woman for the Kungkarangkalpa Tjukurpa (Seven Sisters) and plays an active role in transmitting the Kungkarangkalpa and Kungka Kutjara Dreaming stories to younger claimants, including her children, grandchildren and the children and grandchildren of her deceased brother. She continues to care for and protect country through observing ritual and ceremonial responsibilities, visiting sites including AMIRRIRI, ANARI (Curtin Springs), WITAPULA (Kungkarangkalpa site near Curtin Springs) and PAKU PAKU and by participating in Sacred Sites clearances in relation to mining and development activities on her country.
23 Having regard to the above matters, I am satisfied that the Northern Territory of Australia, acting on behalf of the broader community, has taken a real interest in the proceeding and has engaged in a thorough examination of the application such that it is properly satisfied that there is a credible basis for making the proposed determination. I am therefore satisfied that the proposed order is appropriate and that the requirements made by s 87 of the NTA have been met.