power of the court
11 Section 87 of the Act relevantly provides that the Court may, if it is satisfied that such an order is within the power of the Court and if it appears to the Court to be appropriate to do so, make an order in, or consistent with, the terms of the written agreement of the parties without holding a hearing.
12 The Court has a responsibility to satisfy itself that it has jurisdiction to make an order in the terms sought, that all the statutory and other requirements have been met and that it is appropriate to make the order. As the application is for a determination of native title, in my view it is quite clear that the Court has jurisdiction and power to make the order sought. Section 94A of the Act requires that such an order must set out details of the matters referred to in s 225 of the Act. In my view, the proposed determination complies with the requirements of ss 94A and 225. The next question is whether it is appropriate to make the order containing the proposed determination.
13 In considering whether it is appropriate to make the order which the parties seek, I have had the benefit of reading two anthropological reports which have been admitted into evidence by consent. The first, in terms of preparation, was that of Ms Kim Doohan, prepared in November 1998. The second, dated 28 February 2001, was prepared by Dr Scott Cane. Both reports are very detailed and comprehensive. I was also provided with a most useful aide memoire prepared by Ms Amanda Paul, a consultant historian. I must say that I found these reports not only to be very useful in enabling me to discharge my statutory duties but also fascinating reading.
14 The Tjurabalan People comprise a community of about 950 people which is identifiable as such on several bases. The first basis is their common connection with a large area of land of which the Determination Area forms a part. Dr Cane describes a concept known to Aboriginal people as "Waltjirri" which he says has no real equivalent in the English language, other than perhaps our own notion of tradition. He says that Waltjirri is best understood as the foundation of Aboriginal tradition. Aboriginal people typically describe Waltjirri as their law. Waltjirri is a term used primarily by Walmatjeri and Tjaru members of the applicant group. Other Aboriginal people in the applicant group also use the term "Tingarri" to describe the Waltjirri. Dr Cane says (at page 37) that:
"Waltjirri is not a basis for land ownership as such, but a political and religious vehicle through which issues of land ownership are defined and managed within the broader social context.
. . .
People assert the utilitarian rights of occupancy, use and possession to (sic) land through the physical process of descent, but can argue various levels of control over that land through the metaphysical avenue of Waltjirri."
15 The evidence is that the highest degree of connection is derived from what the Tjurabalan People refer to as the "Jurapalan (Tingarri) law". Much of the evidence about this is confidential, so I do not propose to give any detail of what I have had the privilege of reading. However, I think that I can say safely that Jurapalan is a pivotal aspect of the applicants' laws and customs. Ms Doohan (at p 20) describes Jurapalan as:
"… the cultural concept that gives definition to the Applicant group and the Application area."
16 The spelling in English of various Aboriginal words varies from document to document, so it will vary in these reasons when published.
17 Another important basis for identifying the applicants as being the traditional owners of the determination area is language.
18 Dr Cane, after summarising much of the literature on this point, suggests that the determination area has "… a predominantly Tjaru core (across the Tanami desert or Ngaluwan) that is surrounded [by] a ring of shared country …". Ms Doohan identifies three language groups as Jaru, Nyininy and Walmajarri as being the languages which the applicants speak.
19 Dr Cane includes the Walmatjeri and Nyininy language groups as being relevant, but also refers to the Ngarti and Warlpiri language group. I note that to the extent that the Tjurabalan People are identified in the proposed consent determination by language groups the three language groups Walmajarri, Jaru and Nyininy are referred to.
20 These are also the three languages referred to by the applicants in their notice to admit facts. None of the respondents disputes that fact and I think that it is appropriate for those three language groups to form part of the description of the Tjurabalan People. As I understand the evidence and the intention of the parties, an individual would not have to belong to all three groups in order to be included as a member of the Tjurabalan People. In fact it may not be possible for a person to do so. Accordingly, to remove ambiguity, I have with the consent of all the parties changed the reference to "and" in paragraph (a) of the Third Schedule to read "or".
21 Dr Cane has established that the Tjurabalan applicants form "… a sequence of close relationships" which gives logical coherence to the Tjurabalan native title claimant group.
22 Ms Doohan's report strongly suggests (and I accept the likelihood) that the Determination Area has been occupied by Aboriginal people for at least 22,000 years. Although no archaeological work has been carried out on the Determination Area, such work has been carried out in areas to the north, south, east and west. Archaeological research in the arid regions generally suggests that they have been occupied for at least 22,000 years. Dr Cane's report suggests that occupation occurred very much earlier. As the Sturt Creek area has a relatively rich environment (i.e. long-lasting waters) it is reasonable to infer, and I do so infer, that its chances of being occupied by Aboriginal people for at least 22,000 years were even higher than the arid areas.
23 In that regard, I think that it is useful to incorporate into this judgment a paragraph from Ms Doohan's report dealing with traditional land use patterns. I think as we look around us today we will better understand from this paragraph how Aboriginal people have managed to survive in this area for so many thousands of years. Their ability to survive in this environment is, I would suggest, a source of inspiration to all Australians of whatever colour or creed. It is an amazing story of life, survival and triumph. Ms Doohan says (at page 6):
"The traditional pattern of land use was to exploit the driest areas, which were normally inaccessible or incapable of supporting sustained occupation, immediately following heavy rainfall and then to gradually fall back on the long-lasting or everlasting waters as the country dried out [sources cited]. The main long-lasting waters were found in the waterholes and soakages along Sturt Creek and in the Lake Gregory region with other key waters at, for example, Yaruman (Ringer Soak), Kulajaru (Banana Springs), Nana Rockhole, Mt Brophy Spring and Yuju in the Lirrankarni area. The Ngaluwun area is virtually without water, and certainly without long-lasting water, making it an area that was only seasonally used, whereas the Sturt Creek and the Lake Gregory region, had a more constant and reliable source of water, plant, animal, fish and bird life."
24 In my view, the evidence strongly suggests that the Determination Area and surrounding lands were inhabited by organised communities of Aboriginal people at the time of sovereignty (1829) and for a very long time before that.
25 Both anthropological reports and the aide memoire describe the first European visits to the Determination Area. The first recorded non-Aboriginal people to enter the Determination Area were in the exploration party led by Mr Augustus C Gregory on the North Australia expedition of 1855-56. Mr Gregory and his party followed Sturt Creek for nearly 300 miles and then retraced their footsteps. His journals show that he was in this area between the 21 February 1856, reached the southern most part of what is now called Lake Gregory on 5 March 1856 and left the area around about 20 March 1856. So far as observing Aboriginal inhabitants was concerned, Mr Gregory records seeing eight Aboriginal people who in turn had been watching his party but who went into hiding when approached. The party found frequent traces of what they described as "natives".
26 The records of subsequent expeditions and the history of the establishment of pastoral stations and the interaction between pastoralists and Aboriginal people strongly supports the proposition that Aboriginal communities comprising the ancestors of the applicants continued to occupy the Determination Area. The reports also show that these communities lived in accordance with traditions, procedures, laws and customs which connected them to the land. The evidence and the agreed facts show, in my opinion, that ancestors of the applicants possessed native title in respect of the Determination Area in 1829, that that connection has been maintained through the intervening period and is now maintained by the applicants.
27 As I have mentioned earlier, there are two pastoral leases and five Aboriginal reserves within the Determination Area. The pastoral leases over Bililluna and Lake Gregory stations, are held by the Aboriginal Lands Trust. I am satisfied that those leases are held on trust for at least some of the applicants and the other holders of the native title. Accordingly, any relevant prior extinguishment of the native title rights and interests which may have occurred by any of the acts referred to in s 47(2) of the Act is to be disregarded pursuant to that subsection. Similarly, I am satisfied that the five reserves are reserved expressly for the benefit of Aboriginal peoples and no question of extinguishment arises in relation to those reserves - see s 47A of the Act.
28 In terms of s 87 of the Act I am satisfied that an order in, or consistent with, the terms of the agreement in writing signed by or on behalf of the parties would be within the power of the Court and that it is appropriate for the Court to make an order in or consistent with those terms without holding a hearing. There remain fairly technical matters which need to be dealt with.
29 Under s 55 of the Act the Federal Court must, at the same time as it makes a determination of this type, make determinations about whether the native title is to be held in trust and if so by whom. Paragraphs 2 to 5 of the orders proposed by the parties set out a procedure which, in my view, satisfies the statutory requirements. That procedure was expressly accepted by Drummond J in Mualgal People v State of Queensland (1998) 90 FCR 303 and implicitly approved both at first instance and on appeal in Ward v Western Australia (1998) 159 ALR 483 and Western Australia v Ward (2000) 99 FCR 316. I respectfully follow those decisions and will make orders in the terms proposed.
30 The High Court of Australia has, earlier this year, reserved judgment in a series of cases, best identified by one of them which is known as State of Western Australia v Ward. The parties to the present application have incorporated into their agreement clauses which provide a mechanism relating to minerals and petroleum which may enable a variation to be made to the determination if the High Court overturns or sets aside the Federal Court's decision in the Ward matter. I have examined those clauses and they seem to me to be an entirely appropriate way of reserving the rights of the parties pending the High Court's decision.
31 Then there is one remaining dispute between the applicants and the first respondents which I have to resolve. It relates to confidentiality orders in respect of the anthropological reports (being exhibits A11 and A15). I have read the submissions made on behalf of the applicants and on behalf of the first respondents in relation to the proposed orders. Having read those reports, I fully appreciate the applicants' concerns. The first respondents agree that it is necessary and appropriate to make orders protecting the confidentiality of the reports, but submit that the terms proposed by the applicants' counsel are not authorised by the relevant statutory provisions.
32 I do not need to decide whether the proposed restrictions are authorised or not. The essence of the dispute is whether ultimate control of the use of these reports is to reside exclusively with the native title holders or their legal representatives, or whether that control is to be shared (i.e. in the sense that the applicants may consent to a particular use) by the applicants and the Court. In my view, it is in the interests of justice that, in the absence of consent from the applicants, the Court retains control over the use which may be made of these reports. I have formulated orders which basically follow those proposed by the first respondents, but into which I have built a provision that will require the giving of notice to the applicants and which recognises their right to be consulted. The confidentiality orders will be as follows:
1. Except with the consent of the applicants, or pursuant to an order of this Court, or pursuant to an order of a court of competent jurisdiction hearing a matter arising out of or involving the determination of native title in these proceedings:
(a) exhibits A11 and A15 ("the Reports") are not to be copied or otherwise reproduced;
(b) the contents of the Reports are not to be revealed to any person other than a Judge of the Federal Court or a judicial officer of a court of competent jurisdiction, court staff, and counsel, solicitors, experts and officers of the parties to these proceedings;
(c) the contents of the Reports are not to be quoted, cited, or otherwise used in any manner for any purpose apart from these proceedings or proceedings before a court of competent jurisdiction of a kind referred to above or matters arising out of the determination of native title made in these proceedings.
2. Any party applying for an order of the type referred to in paragraph 1 above must, before making such application, give reasonable notice in writing to the applicants of their intention to make such application.
33 Finally, in accordance with a long common law tradition, I congratulate the parties on having reached an amicable settlement of this long-running matter. There will be an order in or consistent with the terms of the written agreement of the parties filed on 27 July 2001.