O'Keefe on behalf of the Wurdaliya Garambarini, Mambali Nangguya, Rrumburriya Ngurrmu/Jawuma and Murrungun Wunubari Estate Groups v Northern Territory of Australia - [2021] FCA 717 - FCA 2021 case summary — Zoe

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O'Keefe on behalf of the Wurdaliya Garambarini, Mambali Nangguya, Rrumburriya Ngurrmu/Jawuma and Murrungun Wunubari Estate Groups v Northern Territory of Australia

[2021] FCA 717

Federal Court of Australia|2021-06-29|Before: White J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2021-06-29

Before

White J

Catchwords

NATIVE TITLE - consent determination - requirements under s 87 of the Native Title Act 1993 (Cth) - agreement of all parties - determination of native title by consent.

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - requirements under s 87 of the Native Title Act 1993 (Cth) - agreement of all parties - determination of native title by consent.

Judgment (21 paragraphs)

[1]

A. On 9 May 2016, the Applicant made a native title determination application over the land and waters within the bounds of the Billengarrah Pastoral Lease (Perpetual Pastoral Lease No. 1069) (the "Application"). This land now comprises Crown land forming part of the Limmen National Park. B. The Applicant and the Respondents to this proceeding (the "Parties") have reached agreement as to the terms of a proposed determination of native title in relation to the land and waters covered by the Application. C. Acting under ss 87(1)(a)(i) and 87(1)(b) of the Act, the Parties have filed in the Court their agreement in writing (the "Determination"). D. The external boundaries of the area subject to the Determination are described in Schedule A of the Determination and depicted on the map comprising Schedule B of the Determination (the "Determination Area"). E. The terms of the Parties' agreement contemplate the Court making consent orders, pursuant to ss 87 and 94A of the Act, that native title exists in relation to the Determination Area as provided by the Determination. F. The Parties acknowledge that the effect of making the Determination will be that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the native title holders for the Determination Area as provided by the Determination. G. The Parties request that the Court determine this proceeding in accordance with their agreement. BEING SATISFIED that a determination of native title in the terms of the Determination in respect of the proceeding is within the 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:

[7]

The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows: (a) the interests of the Parks and Wildlife Commission of the Northern Territory (the Commission): (i) pursuant to its power of management and control of this area under the Territory Parks and Wildlife Conservation Act 1978 (NT) (and subsidiary legislation including under any Plan of Management in force in relation to the area from time to time) and the Parks and Wildlife Commission Act 1980 (NT); (ii) in any buildings, works or structures, including any adjacent area the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the buildings, works or structures: A. previously constructed or established by others and being occupied and/or used or maintained by or on behalf of the Commission; and B. constructed or established by or on behalf of the Commission in these areas. (b) the interests of members of the public arising from rights of access to and use of these areas as part of a national park, subject to any statutory limitations upon these rights including those under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (c) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (d) rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties; (e) the rights to water lawfully captured by the holders of other interests; (f) the rights and interests of persons to whom valid and validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or (ii) otherwise conferred by statute; (g) the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT), Petroleum Act 1984 (NT) and the Energy Pipelines Act 1981 (NT), depicted in Schedule E: (i) Exploration Licence Title No. 26831 granted on 9 June 2009; (ii) Exploration Licence Title No. 26833 granted on 9 June 2009; (iii) Exploration Licence Title No. 26938 granted on 9 June 2009; (iv) Exploration Licence Title No. 28656 granted on 27 October 2011; (v) Exploration Licence Title No. 28658 granted on 27 October 2011; (vi) Exploration Licence Title No. 30156 granted on 9 June 2009; (vii) Exploration Licence Title No. 30305 granted on 9 June 2009; (viii) Exploration Licence Title No. 31354 granted on 14 May 2018; (ix) Mineral Lease Northern No. 624 granted on 22 October 1971; (x) Exploration Permit No. 171 granted on 29 June 2011; (xi) Exploration Permit No. 176 granted on 29 June 2011; and (xii) Exploration Permit No. 184 granted on 21 August 2013.

[13]

Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters:

The following roads within the external boundaries of NT Portion 1323 constructed by or on behalf of the Northern Territory as public roads: (a) A strip of land 100m in width, being the land 50m each side of the centreline of the road known as the Nathan River Road from the boundary of the Mambaliya Rrumburriya Wuyaliya Aboriginal Land Trust (NT Portion 5706, formerly Carpentaria Downs Station) to the boundary of the Jandanku Aboriginal Land Trust (NT Portion 1203, formerly Bauhinia Downs Station); (b) A strip of land 100m in width, being the land 50m each side of the centreline of the road known as Ryans Bend Road from the Nathan River Road to the boundary of McArthur River Station (NT Portion 4319, comprising of the former Tawallah, McArthur River and Bing Bong Stations); (c) A strip of land 100m in width, being the land 50m each side of the centreline of the road known as Bauhinia Property Access from the Nathan River Road to the boundary the Jandanku Aboriginal Land Trust (NT Portion 1203, formerly Bauhinia Downs Station); (d) A strip of land 100m in width, being the land 50m each side of the centreline of the road known as Lorella Road from Nathan River Road to the boundary Lorella Springs Station (NT Portion 1333) (also known as the Lorella Springs Access Road); and (e) A strip of land 100m in width, being the land 50m each side of the centreline of the road known as Billengarrah Homestead Access Road 100m wide from the site of the former Billengarrah Station Homestead to the Ryan Bends Road (also known as Billengarrah Homestead Road).
Those parts of the Determination Area covered by public works as defined in s 253 of the Act (including adjacent land or waters as defined in s 251D of the Act) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date, including but not limited to: (a) gravel pits adjacent to the roads referred to at paragraph 1 above used to maintain those roads; (b) access roads or tracks to the public works referred to in this clause; (c) Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads; (d) river and rain gauges; (e) transmission and distribution water pipes and associated infrastructure; (f) sewer pipes, sewer pump stations and associated infrastructure; and (g) electricity transmission lines, towers, poles and associated infrastructure.

[19]

Approach to the application of s 87 6 An evident policy of the NT Act is the encouragement of parties to reach agreement with respect to claims for native title, without the necessity for a formal trial. Sections 87 and 87A reflect that policy by permitting the Court to give effect to the parties' agreement without itself conducting a trial of the merits of an application. 7 As a determination of native title binds not only the parties to the proceeding in which it is made, but everyone else in the community, the NT Act also requires the Court to be satisfied that the determination which the parties ask it to make by consent is supportable and is in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. 8 The approach of the Court in these circumstances has been described in a number of cases. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said: [36] The focus of [s 87] is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. 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. [37] 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 … 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 … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. [38] The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case. (Citations omitted) 9 As is apparent, North J emphasised the role of the relevant State or Territory in investigating and assessing claims for determinations of native title, and the weight which the Court is entitled, when considering applications under ss 87 and 87A, to give to the State or Territory's evaluation of claim and its consent to the determination. 10 In Nelson v Northern Territory of Australia [2010] FCA 1343; (2010) 190 FCR 344 at [12]-[13], Reeves J referred to the significance of the role of the State or Territory in agreements leading to proposed consent determinations. His Honour said: [12] It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community's interests, including the stringency of the processes it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement. In Lovett North J commented: … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. [13] I respectfully agree with North J in these observations. In my view, it would be perverse to replace a trial before the Court with a trial conducted by the State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act. 11 Madgwick J emphasised the responsibility of the State or Territory in assessing claims for native title in Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at [38]: … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land. The State is faced with a good many such claims. A deal of proper caution is to be expected … 12 Finally, the following passage in the reasons of Keane CJ in King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 at [19] has been influential: More recently, the Court has been prepared to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the Court reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed … 13 The approach set out in these passages has been applied by the Court in a number of cases and I am satisfied that it is appropriate to apply it presently.

[20]

Consideration 14 The joint written submissions and the Statement of Joint Agreed Facts provided by the Applicant and the Northern Territory indicate that regard has been had to an extensive range of material. In particular, they indicate that in 2014 the Applicant provided to the Northern Territory a short-form anthropological report prepared by Dr Stephen Bennetts, an anthropologist, that identified the Aboriginal groups which, under traditional laws acknowledged and the traditional customs observed, possess primary and secondary rights in the claim area, the nature and extent of those rights, matters of connection, and site and dreaming tracks. The Territory assessed Dr Bennetts' report and referred it to Professor Basil Sansom for review. The parties then considered matters raised by Professor Sansom as well as other issues. 15 On 10 February 2018, the Applicant provided to the Northern Territory a second anthropological report from Dr Bennetts, an anthropological report from Mr Stead (who had also been retained by the Applicant) concerning a large area which included the area of the Billengarrah Pastoral Lease, and witness statements from two senior claimants, Gordon Nawundulpi and Jerry Anderson. 16 In the preparation of their reports, the anthropologists drew on an extensive amount of material including material contained in reports of the Aboriginal Land Commissioner prepared under the Aboriginal Land Rights (Northern Territory) Act 1976 which concerned areas adjacent or near to the area of the Billengarrah Pastoral Lease. 17 As a result of the consideration of all this material, the Applicant and the Northern Territory are agreed that the native title claim group is comprised of persons who hold native title rights and interests in the determination area within the meaning of s 223(1) of the NT Act and have agreed upon the content of those rights and interests. 18 The Northern Territory has extracted details of tenure within the determination area and they too have been the subject of agreement. 19 The second respondent does not dispute any of the matters agreed between the Applicant and the Northern Territory concerning the estate groups, their connection to the determination area and their native title rights and interests. 20 I am satisfied that each of the "procedural" requirements of s 87 have been satisfied: the period specified in the notice issued by the Native Title Registrar under s 66 has expired; each of the current parties to the proceeding is a party to the agreement; the terms of the proposed determination have been reduced to writing and signed by or on behalf of each party; and the terms of the agreement have been filed in the Court. The proposed determination is to be made on the amended application for a determination of native title filed by the Applicant on 7 June 2020. This is a valid application under the NT Act and it is within the Court's jurisdiction under s 61 of the NT Act to make the determination. 21 Section 94A of the NT Act requires that an order of the Court determining a native title claim set out details of the matters mentioned in s 225. Section 225 provides: 225 Determination of native title 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 or 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. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 22 The requirements of s 223(1) were considered by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422. The relevant principles were also reviewed by Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404. Those principles require that there be a recognisable group or society which presently recognises and observes traditional laws and customs in the area of the proposed determination. The parties are agreed that four estate groups hold native title rights and interests in the determination area: (a) the Wurdaliya Garambarini estate group; (b) the Mambali Nangguya estate group; (c) the Rrumburriya Ngurrmu/Jawuma estate group; and (d) the Murrungun Wunubari estate group. 23 The agreed facts identify the apical ancestors from whom each estate group is descended. They also contain details of the knowledge of the estate group members of their country, and their responsibility for it, as well as other matters supporting the connection of the estate group members to the determination area. 24 I am satisfied that the proposed determination satisfies the elements of s 225 as required by s 94A of the NT Act. Clause 1 and Schedules A and B set out with appropriate particularity the area in which native title exists. Clauses 5-6 define the group of native title holders and the criteria by which group membership is determined. Clauses 7-8 provide that the members of neighbouring estate groups also have native title rights and interests in the determination area, but that those rights and interests are subject to those of the estate groups. 25 Clauses 9-13 set out the nature of the native rights and interests in the determination area. Clause 15 sets out in an appropriate way the nature and extent of the other interests in the determination area and clauses 16 and 17 define the relationship of those "other interests" with the determined native title rights and interests. 26 By ss 55 and 56 of the NT Act, the Court must determine whether the native is to be held in trust and, if so, by whom. Order 2 specifies that the native title is not to be held in trust.

O'Keefe on behalf of the Wurdaliya Garambarini, Mambali Nangguya, Rrumburriya Ngurrmu/Jawuma and Murrungun Wunubari Estate Groups v Northern Territory of Australia

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Judgment (21 paragraphs)

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