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[2016] FCA 684
Federal Court of Australia
2016-06-16
Rangiah J
Original judgment source is linked above.
THE COURT NOTES THAT: A. The applicant in this proceeding NTD27/2013 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 Northern Territory of Australia ("the parties") 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:
(c) 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facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth)(now repealed), Telecommunications Act 1975 (Cth)(now repealed), Australian Telecommunications Corporation Act 1989 (Cth)(now repealed), Telecommunications Act 1991 (Cth)(now repealed) and under Sch 3 to the Telecommunications Act 1997 (Cth), including the right: A. to inspect land; B. to install and operate telecommunication facilities; and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. (d) NT Portion 312 - 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); (e) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (f) 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; (g) 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 10. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 9, 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 11. 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)). 12. 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) "natural waters" includes springs and rockholes. 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 6 December 2013, the applicant on behalf of the members of the Rrwerk/Mamp/Arrwek, Yinjirrpikurlangu, Janyinpartinya, Yanarilyi/Anerely and Ngarliyikirlangu landholding groups filed in the Federal Court of Australia a native title determination application over the land and waters within the bounds of the Mount Denison Station (NT Portion 312; Perpetual Pastoral Lease No. 1110) and Crown Land (NT Portion 4153) ("the original application"). The Determination Area is an area of some 2,702 square kilometres and is located in the central region of the Northern Territory. It is more particularly described in Schedule A of the orders and depicted on a map in Schedule B of the orders ("Determination Area"). 2 The applicant consists of Jack Cook Ngal/Jangala, Teddy Long Jupurrurla and Maggie Ross Napaljarri. In the original application there was a fourth applicant named. On 4 May 2016, the applicant was given leave by the Federal Court to amend the original application to remove the fourth applicant (the Further Amended Application, referred to as "the application"). 3 On 5 June 2014, Mount Denison Proprietors Pty Ltd filed a notice of intention to become a party to the application and became the second respondent. However on 19 February 2016, that company filed a notice to cease being a party to the application. The only remaining respondent is the Northern Territory of Australia. 4 On 5 February 2016, the applicant was given leave by the Federal Court to amend the original application to remove NT Portion 4153 from the claim. This was done because NT Portion 4153 had subsequently been granted as an estate in fee simple to the Yurrkuru Aboriginal Land Trust.
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 has 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. 8 This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current application 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 existed since before European settlement.
The Rrwerk/Mamp/Arrwek, Yinjirrpikurlangu, Janyinpartinya, Yanarilyi/Anerely and Ngarliyikirlangu people, their society and history 9 The applicant has filed an anthropological report prepared by Professor Nicolas Peterson and 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, Jack Cook Ngal/Jangala, Teddy Long Jurpurrurla and Maggie Ross Napaljarri. 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. 10 The affidavits and the anthropological report are important, not only for this case, but as records of the history of the landholding groups. They deserve to be read in full. For present purposes, I can only provide a brief summary of the evidence before the Court. 11 The landholding groups are part of a society whose territory extends beyond the Determination Area. The network of Dreaming tracks in the region forms the basis for the socio-spatial organisation of landholding groups. The evidence establishes that the native title holders are descendants of people who occupied the Determination Area since "time immemorial" and communally acknowledge beliefs about the physical and cultural landscape, and the legal, social, kinship and religious systems. 12 The landholding group members have exercised, and continue to exercise, rights over country through the transmission, acknowledgment, observance and knowledge of traditional laws and customs passed from generation to generation. In the affidavit of Maggie Ross Napaljarri, sworn 13 August 2013, she states: I taught my children all about my country. My mother, father and my father's sister taught me about…my country. They taught me…my Dreamings. I teach my granddaughters all about my Dreamings and country. 13 The primary native title holders comprise the members of the following landholding groups: (a) the Rrwerk/Mamp/Arrwek landholding group; (b) Yinjirrpikurlangu landholding group; (c) Janyinpartinya landholding group; (d) Yanarilyi/Anerely landholding group; and (e) Ngarliyikirlangu landholding group. 14 The persons who hold the common or group rights comprising the native title are the Aboriginal persons who: (a) are members of one or more of the landholding groups referred to in paragraph 13 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 13 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 15 The anthropological and affidavit evidence includes material addressing the nature and content of the rights and interests possessed by the landholding groups under traditional laws and customs, including hunting, songs and ceremonies, protection of sacred sites, cooking and the making of spears and boomerang. 16 The evidence demonstrates that the landholding group members have held and exercised rights and interests in the Determination Area under their traditional laws and customs since prior to sovereignty and have continued to do so to the present time. 17 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. 1110; (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. 18 The native title rights and interests referred to in paragraph 17 do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others. 19 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 20 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. 21 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 respondent; (c) Joint Submissions of the applicant and the respondent. 22 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. 23 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). 24 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. 25 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. 26 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. 27 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. 28 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. 29 On 2 May 2015, the applicant provided the respondent with a Summary Anthropology Report for Mt Denison Perpetual Pastoral Lease No. 1110 ("Anthropology Report") and a Sites and Dreaming Map. The Anthropology Report and the Sites and Dreaming Map were prepared by Professor Nicolas Peterson and Dr Anna Kenny. The Anthropological Report included a declaration pursuant to Federal Court Practice Note CM 7 as to the completeness of the enquiries made in relation to the preparation of the report. 30 The Anthropological Report was considered by a Legal Officer for the respondent and assessed against criteria agreed by the parties as satisfying the requirements of s 223 of the Act. 31 The applicant and the 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. 32 On 12 May 2015, the respondent provided to the applicant a letter attaching the "Respondent's Tenure Extinguishing Table", which contained an analysis of the extinguishment of native title in the Determination Area based upon the grant of tenure and public works ("Respondent's Extinguishment Contentions"). 33 On 13 May 2015, the applicant provided the respondent with the applicant's reply to the Respondent's Extinguishment Contentions. The respondent and the applicant subsequently exchanged further correspondence particularly in relation to NT Portion 4153, which at the time, was still subject to claim. 34 The applicant and the respondent reached agreement as to those parts of the Determination Area in which native title does and does not exist and the applicant agreed to discontinue the native title claim over NT Portion 4153. 35 The applicant and the respondent have agreed to a list of commonly occurring government constructed infrastructure or public works which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date that wholly extinguish native title (including adjacent land or waters as defined in s 251D of the Act) without evidence of the construction or establishment of the relevant public works and improvements being exchanged. That list is included in Schedule C of the orders. 36 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. 37 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 comprising the native title area. I accept the submission of the parties that, by the details referred to in paragraphs 13 and 14 and in the application, that prescription is satisfied. 38 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). 39 It is also necessary, by reason of s 225(c) and (d), 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. 40 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 respondent, Mount Denison Proprietors Pty Ltd, ABM Resources NL, Wuhua Mining Corporation Pty Ltd and Telstra Corporation Ltd over a period of time. Agreement was reached on those issues. 41 As to the more formal matters, I am satisfied that s 87 of the Act has been met in relation to this application. In particular, I note that: (a) the period specified in the notice given under s 66 ended on 3 September 2014 (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) of the Act); (iii) the Minute agreed to by the parties complies with ss 94A and 225 of the Act (s 87(1)(c)). 42 I am satisfied that the orders are supported and in accordance with the law. 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 43 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 the orders states that the Mt Denison Aboriginal Corporation (ICN: 7716) 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). 44 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 12 April 2012. At that meeting, the members of the Mt Denison 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. 45 Accordingly, the Court determines that the Mt Denison Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 56(1) of the Act. 46 For the reasons outlined above, I will make the orders agreed upon by the parties. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.
Ngal/Jangala on behalf of the Rrwerk/Mamp/Arrwek, Yinjirrpikurlangu, Janyinpartinya, Yanarilyi/Anerely and Ngarliyikirlangu landholding groups
Northern Territory of Australia