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[2017] FCA 1561
Federal Court of Australia
2017-12-20
Mr P, White J
Original judgment source is linked above.
A. On 16 July 2013 a Judge of this Court made a determination of native title in proceeding SAD 208 of 2010 (De Rose v State of South Australia [2013] FCA 687) in favour of the native title group described in that determination. The native title was ordered to be managed by Tjayuwara Unmuru Aboriginal Corporation ICN 7854 (now Tjayuwara Unmuru Aboriginal Corporation RNTBC ICN 7854) as the Registered Native Title Body Corporate (RNTBC). B. On 27 February 2015, the Applicant, authorised by the Tjayuwara Unmuru Native Title Holders, filed this Application seeking a determination of compensation under s 50(2) of the Native Title Act 1993 (Cth) (NT Act) in respect of the extinguishment of native title within certain areas within the native title determination area. C. The Applicant and the Respondent have reached agreement (Compensation Agreement) as to the compensation payable by the Respondent under the NT Act in relation to: (a) all of the acts the subject of this proceeding; and (b) any acts over part or all of the land within the external boundary of the Tjayuwara Unmuru Determination. They have recorded those agreements in an agreement annexed hereto at Schedule 3 and have agreed that the amount payable is confidential. D. Pursuant to s 87(1) of the NT Act, the Applicant and the Respondent have set out in that document the agreed terms of the orders (including a determination of compensation) which they ask the Court to make in relation to the Application. E. The Applicant and the Respondent agree that the payment by the Respondent to the RNTBC on behalf of the native title holders of the confidential sum referred to in the Compensation Agreement comprises full and just (in the sense required by s 51 and 53 of the NT Act) compensation for any acts attributable to the Respondent (or for which the Respondent is liable to pay compensation) in the Agreement Area in accordance with the terms of the Compensation Agreement, including those acts identified in Part B of Schedule 1. F. The Attorney-General of the Commonwealth of Australia has intervened in the Application as of right (pursuant to s 84A(1) NT Act). The Commonwealth does not consent but does not oppose the orders sought by the principal parties to this matter.
Being satisfied that a determination in the Application in the terms sought by the parties is within the power of the Court and it appearing to the Court appropriate to do so and by the consent of the Applicant and Respondent:
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS PURSUANT TO S 87(4) OF THE NT ACT:
AND THE COURT MAKES THE FOLLOWING FURTHER ORDER PURSUANT TO S 37AG(1)(A) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH):
SCHEDULE 1 - External Boundary Description AND Map of the Agreement Area and the Determination Area Part A - External Boundary Description1 Agreement Area The Agreement Area covers all the land and waters within the external boundary described as: Commencing at the north-western corner of Piece 3000 in Deposited Plan 35731, Out of Hundreds (Alberga), Pastoral Lease 2491 (Ayers Range South), being a point on the State Border between the State of South Australia and the Northern Territory; thence easterly to the north-eastern corner of the said Piece 3000; easterly to the north-western corner of Piece 3001 in Deposited Plan 35731, Out of Hundreds (Alberga), Pastoral Lease 2491 (Ayers Range South); easterly to the north-eastern corner of the said Piece 3001; easterly along the northern boundary of Section 1319, Out of Hundreds (Alberga) to the north-western corner of Piece 3002 in Deposited Plan 35731, Out of Hundreds (Alberga), Pastoral Lease 2491 (Ayers Range South); easterly to the north-eastern corner of the said Piece 3002; easterly to Longitude 133.900000° east, being a point on the northern boundary of Block 1227, Out of Hundreds (Abminga), Pastoral Lease 2495 (Tieyon); generally southerly to Longitude 133.850000° east, being a point on the southern boundary of the said Block 1227; westerly to the south-eastern corner of Block 1213, Out of Hundreds (Abminga); northerly to the north-eastern corner of Block 1212, Out of Hundreds (Abminga); westerly to the north-western corner of the said Block 1212; northerly to the south-eastern corner of the aforementioned Piece 3002; generally westerly to the south-western corner of the said Piece 3002; generally westerly to the south-eastern corner of the aforementioned Piece 3001; generally westerly to the south-western corner of the said Piece 3001; generally westerly to the south-eastern corner of the aforementioned Piece 3000; generally westerly to the south-western corner of the said Piece 3000; thence northerly along the western boundary of the said Piece 3000 to the point of commencement. Part B - Compensation Determination Area The Compensation Determination Area covers the following land and waters:
SCHEDULE 4 - Compensation Agreement TO BE VIEWED ONLY BY A JUDGE OF THE FEDERAL COURT FOR THE PURPOSE OF MAKING THIS ORDER UNLESS THE COURT OTHERWISE ORDERS. [See Order 8]
WHITE J: 1 On 16 July 2013, the Court made, by consent, a native title determination (the Tjayuwara Unmuru Determination) in favour of the Nguraritja People: De Rose v State of South Australia [2013] FCA 687. The determination was that the Nguraritja hold native title in a significant area in the central part of the far north of South Australia. 2 On 27 February 2015, the Nguraritja filed an application pursuant to s 61 of the Native Title Act 1993 (Cth) (the NT Act) seeking compensation in respect of areas excluded from the consent determination because native title had been extinguished in those areas. The extinguishment had occurred by reason of acts of the State of South Australia (the State). 3 The Nguraritja and the State have now agreed on the compensation to be paid and seek a consent determination giving effect to their agreement. The Commonwealth Attorney-General intervened in the proceedings. He has adopted a position of neutrality in relation to the making of a consent determination giving effect to the parties' agreement: not consenting to but not opposing the making of the determination. 4 These reasons explain why I consider it appropriate to make orders giving effect to the parties' agreement.
The areas 5 The determination concerns the following areas: relatively small portions of the Stuart Highway corridor which traverses the Tjayuwara Unmuru Determination area (together, the Stuart Highway Corridor Land); and land dedicated for the purpose of a Digital Radio Concentrator Tower which is under the care, control and management of Telstra Corporation Ltd (the DRC Land). 6 The Stuart Highway Corridor land is an area of approximately 4.153 km2 shown on Deposited Plan 23548. It is made up of two sub-areas: (a) an area of approximately 4.13 km2 surrendered from Pastoral Lease No. 2941 (Crown Lease Volume 1433 Folio 13) on 10 November 1983 (Partial Surrender No. 5133842) for the Stuart Highway Corridor; and (b) Allotments 63 and 64 (totalling 0.023 km2) in Deposited Plan 23548 excised from the same Pastoral Lease on 19 July 1990 (Partial Surrender No. 6957655) being two car parks or rest stops. Allotment 63 is now Allotment 1 in Filed Plan 252365 but Allotment 64 remains as it was. 7 The DRC land comprises an area of approximately 0.0225 km2 and is Allotment 3003 in Deposited Plan 35731, being an area excised from the same Pastoral Lease as was the Stuart Highway Corridor land. The excision occurred on 29 September 1994 (Partial Surrender No. 7800975) and, as indicated, was for the purposes of a Digital Radio Concentrator Tower. 8 Both the Stuart Highway Corridor Land and the DRC Land are surrounded by the land which was the subject of the Tjayuwara Unmuru Determination. Had it not been for the acts of the State which had the effect of extinguishing native title, both the Stuart Highway Corridor Land and the DRC Land would have been claimed by the Nguraritja in the Tjayuwara Unmuru Native Title Claim and would, in all probability, have formed part of the Tjayuwara Unmuru Determination. 9 Clause 11 and Sch 3 of the Tjayuwara Unmuru Determination recorded that native title had been extinguished in the whole of the corridor of the Stuart Highway and in the DRC Land. 10 The State accepts that, despite the Tjayuwara Unmuru Determination, there may be some uncertainty as to whether native title in the DRC Land has been wholly extinguished, and that an application may later be made to this Court to vary the Tjayuwara Unmuru Determination in that respect. Nevertheless, the parties are agreed that, irrespective of the making of such an application or its outcome, their agreement concludes the liability of the State for compensation in respect of the area. 11 The parties have also reached agreement with respect to the liability of the State under the Native Title (South Australia) Act 1994 (SA) (NTSA Act) for other acts within the area of the Tjayuwara Unmuru Determination. 12 The Tarcoola to Alice Springs railway corridor also traverses the Tjayuwara Unmuru Determination area. The parties agree that the State is not liable for any compensation in relation to that corridor.
The entitlement to compensation 13 The entitlement of the Applicants to compensation arises from the provisions in Pt 2, Div 2 of the NT Act and the counterparts to those provisions in the NTSA Act. These provisions operate in the setting of ss 10 and 11 of the NT Act which provide (relevantly): 10 Recognition and protection of native title Native title is recognised, and protected, in accordance with this Act. 11 Extinguishment of native title (1) Native title is not able to be extinguished contrary to this Act. … 14 Division 2 of Pt 2 of the NT Act provides for the validation of certain "past acts" having the effect of extinguishing (or affecting) native title which are attributable to the Commonwealth and which would otherwise be invalid because of native title. The Division also provides, in s 19, for legislation by the States and Territories to have a corresponding effect in respect of past acts attributable to them. The NTSA is legislation of this kind. 15 Section 20(1) of the NT establishes an entitlement in native title holders to compensation when a law of a State or Territory validates a "past act". Section 22G of the NT Act establishes an entitlement in native title holders to compensation when a law of a State or Territory validates an "intermediate period act" attributable to the State or Territory. 16 It is common ground between the parties that s 19 of the NT Act and s 32 of the NTSA Act, in combination, have the effect of validating the acts involved in the surrender and excision of the Stuart Highway Corridor land and the subsequent establishment of that land as part of the Stuart Highway Corridor. This means that the Nguraritja's entitlement to compensation in respect of that land is enlivened. 17 It was also common ground that s 19 of the NT Act and s 32A of the NTSA Act have the effect of validating the act of the State in excising the area of the DRC land with the consequence, again, that the entitlement of the Nguraritja to compensation pursuant to s 20(1) in respect of that land is enlivened.
The Court's power 18 The Court's power to make the determination by consent derives from s 87 of the NT Act. 19 Section 87 provides (relevantly): 87 Power of Federal Court if parties reach agreement Application (1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66: (a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to: (i) the proceedings; or (ii) a part of the proceedings; or (iii) a matter arising out of the proceedings; and (b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court. Power of Court (1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with: (a) whichever of subsection (2) or (3) is relevant in the particular case; and (b) if subsection (5) applies in the particular case - that subsection. Agreement as to order (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). … 20 The conditions enlivening the Court's power specified in subs (1) are satisfied in this case: the period specified in the notice given pursuant to s 66 of the NT Act expired on 5 August 2015 and the application was made after that date; the parties have reached agreement on the terms of the orders to be made by the Court; the signed agreement has been filed in the Court; and I am satisfied that an order in the terms proposed is within the power of the Court. 21 As s 87(2) indicates, the Court may make an order on the agreement of the parties without conducting a hearing. This is a statutory indication of the importance of the parties' agreement. This Court has recognised that importance in a number of authorities. For present purposes, it is sufficient to refer only to the statement of Mansfield J in Lander v South Australia [2012] FCA 427 at [11]-[12]: [11] The focus of the Court in considering whether the orders sought are appropriate under s 87 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]-[37] that: The Act [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding 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: … 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: … [12] Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: ... However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: ... See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J: 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. (Citations omitted) 22 Those observations are as apposite in the case of compensation determinations as they are in relation to consent determinations of native title: De Rose v State of South Australia [2013] FCA 988 at [25]. This means that the making of the determination by consent turns on the Court being satisfied that it is "appropriate to do so", s 87(1A). 23 Section 51 of the NT Act provides (relevantly): 51 Criteria for determining compensation Just compensation (1) Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. … (4) If: (a) neither subsection (2) nor (3) applies; and (b) there is a compulsory acquisition law for the Commonwealth (if the act giving rise to the entitlement is attributable to the Commonwealth) or for the State or Territory to which the act is attributable; the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria set out in that law for determining compensation. Monetary compensation (5) Subject to subsection (6), the compensation may only consist of the payment of money. … 24 Section 51A of the NT Act provides for a limit on the amount of compensation payable: Compensation limited by reference to freehold estate (1) The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters. This section is subject to section 53 (2) This section has effect subject to section 53 (which deals with the requirement to provide "just terms" compensation).
The reaching of the agreement 25 The parties are agreed on the compensation which is appropriate, pursuant to s 51, to compensate the Nguraritja for the compensable extinguishment caused by the State. They are agreed that the compensation sum provides "just terms" for the purposes of the NT Act. The parties are also agreed that the compensation under this determination discharges all native title compensation obligations to the Nguraritja for acts before 5 July 2017. 26 The Court has had regard to the following material: the application for compensation and the affidavits provided by the native title holders in support of it; the written submissions of the parties including the joint submissions concerning the making of the determination; the draft minutes of order; and the Compensation Agreement. 27 The parties have engaged in extensive negotiations on a confidential and without prejudice basis. During the course of the negotiations, the Nguraritja provided the State with videoed interviews of the claimants and an expert report concerning the effect of the loss. The videoed interviews included material containing culturally sensitive information provided by the native title holders in support of their claim. That material is, in accordance with the traditional laws and customs of the Nguraritja, to be viewed only by certain senior males. 28 The State engaged an anthropologist, Mr McCaul, to assess the claimants' material. 29 The paragraphs which follow contain a summary of some of the claims and material provided by the claimants. The summary does not represent findings of fact because the obtaining of the agreement meant that it was not necessary for the State to reach a concluded view concerning them. 30 The Nguraritja have creation stories and laws, known as tjukurpa, which cross the determination area. They claim that the establishment of the Stuart Highway and of the Digital Radio Concentrator tower have interfered with the pathway of a particular highly restricted men's tjukurpa. There is a ceremony associated with this tjukurpa which is of the highest importance and in which only men of required ritual seniority can participate. The details of the tjukurpa and its association with the determination area have never been recorded in an open or public manner. 31 The Nguraritja claim that the Stuart Highway has cut the tjukurpa in three different places, causing irreversible damage to the cultural landscape and to the laws and customs associated with the tjukurpa. The Nguraritja also claim that the Digital Radio Concentrator tower has been built in a sacred area and now constitutes an impediment to the tjukurpa track as it travels from one site in the determination area to another. 32 The Nguraritja also claim that Stuart Highway has changed the manner in which water flows across the land which, in turn, has spiritual consequences. In part this is because the Stuart Highway has been built up and in part, because of the excavation of borrow pits at various places along its length. 33 The Nguraritja claim further that the Stuart Highway has affected the exercise of their native title rights to hunt and gather from the land. This is because animals such as kangaroos and emus have been frightened away from the road. In addition, the Highway and its frequent use have restricted the activities which can be carried on in close proximity to it. 34 The claimants have identified other detriments, which it is not necessary to recount presently. 35 The detriments described above concern the land comprising the Stuart Highway corridor generally, and are not specific to the Stuart Highway Corridor Land as I have defined it for the purposes of these reasons.
Section 13(2) 36 Section 13(2) of the NT Act provides that, if the Court is making a determination of compensation in accordance with Div 5 of the Pt 2, and an approved determination of native title has not previously been made in relation to the whole or part of the area concerned, the Court "must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made". 37 Section 13(2) is not engaged in the present case because the Tjayuwara Unmuru Determination made on 16 July 2013 provided expressly in cl 11 and Sch 3 that native title had been extinguished in the areas which are the subject of the present determination.
Section 94 38 Section 94 of the NT Act requires a determination of compensation to set out: (a) the name of the person or persons entitled to the compensation or the method for determining the person or persons; and (b) the method (if any) for determining the amount or kind of compensation to be given to each person; and (c) the method for determining any dispute regarding the entitlement of a person to an amount of the compensation. 39 Paragraph [5] of the determination provides that the persons entitled to the compensation, the amount or kind of compensation to be given to each person, and any dispute regarding the entitlement of a person to an amount of compensation is to be determined in accordance with the decision-making processes of the Tjayuwara Unmuru Aboriginal Corporation RNTBC 7854 (TUAC RNTBC). It is the registered native title body corporate for the land which was the subject of the Tjayuwara Unmuru Determination. The decision-making processes of the TUAC RNTBC are to be those set out in its Constitution as lodged from time to time with the Office of the Registrar of Indigenous Corporations.
Legal representation and advice 40 South Australian Native Title Services (SANTS) acted for the Applicant in relation to the making of the Tjayuwara Unmuru Determination. It has also acted for the Applicant in the present application. 41 A solicitor employed by SANTS has advised the Applicant and the TUAC RNTBC throughout the negotiations. The Court was informed that SANTS had, in addition, received advice from senior counsel throughout the course of the negotiations. Accordingly, it is appropriate to proceed on the basis that all parties have had competent independent legal advice in the proceedings.
Confidentiality of the amount of compensation 42 The parties joined in submitting that the Court should make an order preserving the confidentiality of the amount of compensation. They sought the making of that order pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) on the ground that it is necessary to prevent prejudice to the proper administration of justice. 43 The Court invited separate submissions as to the appropriateness of the confidentiality order. In support of the application, SANTS provided an affidavit from Mr Pearson, the first of the named claimants. Mr Pearson's affidavit discloses the following: (a) the negotiations which the Applicant conducted with the State were on a confidential basis and the Applicant had understood, at the time of the negotiations, that the amount agreed upon would be kept confidential; (b) the amount of compensation is a compromise figure taking into account both legal and factual uncertainties and, further, the Applicant's desire to avoid further disclosure of the highly secret men's law to which reference was made earlier; and (c) the potential for there to be a critique in the wider Aboriginal community, and in particular amongst the Western Desert People, of the compensation amount. Such a critique may be positive or negative, informed or uniformed, merited or unwarranted. 44 More generally, both the Applicant and the State submitted that the prospect of the compensation sum being kept confidential was a significant factor in the obtaining of agreement. Both parties pointed out that the principles concerning the assessment of compensation under s 51 of the NT Act are still not finally settled, even taking account of the first instance decision in Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900, (2016) 337 ALR 362 and the Full Court decision in Northern Territory of Australia v Griffiths [2017] FCAFC 106, (2017) 346 ALR 247 and that the compromise was reached in this particular context. 45 Both parties referred to the suppression order made by Mansfield J in De Rose v State of South Australia [2013] FCA 988. That suppression order also concerned the amount of the compensation. Mansfield J gave three reasons for concluding that suppression of the amount of the compensation was necessary to prevent prejudice to the proper administration of justice, as the following passage indicates: [82] … The disclosure of that figure, where there are presently no decisions addressing in a reasoned way how compensation under the [NT Act] is to be assessed, may create expectations either on the part of other applicants or on the part of other States or Territories in other matters which private consensual agreement should not produce. In addition, the disclosure of that figure may be seen to set a tariff for other compensation claims that it would be quite inappropriate to set as each set of circumstances will necessarily be different. It may therefore impede independent negotiation by the State or by other States or Territories or other compensation claims. Finally, the disclosure of that figure may draw attention to the Nguraritja, and may invite criticism - positive or negative - from other compensation claimants under the [NT Act] in a way which would be unfair. It may also invite criticism - positive or negative - of the State itself. The unfairness would flow from the fact that, as the figure has been agreed in private mediation and negotiations, it is not possible to know the detailed considerations which led to the agreement. All of those factors mean that disclosure of that figure may impede the prospects of satisfactory negotiation of other compensation claims. That would impede and prejudice the proper administration of justice, especially where the [NT Act] encourages the negotiated outcome of applications under it. 46 There are some countervailing considerations. These include the importance of the open justice principle, the fact that the compensation involves expenditure of public money and the interests of transparency and accountability with respect to the compensation sum. Further, things have moved on since the decision in De Rose. There are now the two decisions in Griffiths to which reference was made earlier. It is also reasonable to think that, in some respects, the disclosure of the compensation figure in this case may facilitate negotiations in other matters. 47 Nevertheless, I am persuaded that the suppression is appropriate, in particular having regard to the matters to which Mr Pearson deposed and the considerations to which Mansfield J referred in De Rose. In addition, I have taken account of the evident policy of the NT Act to encourage the resolution of matters by agreement, and the circumstance that, this being an early compensation case, the parties conducted their negotiations on the basis of an expectation of confidentiality. The circumstance that the applications for special leave to appeal to the High Court in Griffiths remain undetermined at this is also material, as it indicates that, even in those matters, finality in the proper approach to the assessment of compensation has not been achieved. 48 In this combination of circumstances, I accept that the maintenance of confidentiality of the compensation sum is necessary to prevent prejudice to the proper administration of justice. I attach particular significance to the basis upon which the parties negotiated having regard to the confidentiality order made in De Rose. I observe that in the future when the principles concerning the assessment of compensation become more settled, parties may not be able to proceed on that assessed basis, especially having regard to the countervailing considerations to which I have referred. 49 Accordingly, the Compensation Agreement to which reference is made in the Orders is attached in a redacted form. The un-redacted version of the Compensation Agreement will also be attached but in a sealed envelope which is marked that it is not to be opened without the leave of a Judge of this Court.
Conclusion 50 As already indicated the NT Act encourages the resolution of claims by agreement. For the reasons give above, I am satisfied that it is appropriate to make the orders to give effect to the parties' agreement. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Pearson on behalf of the Tjayuwara Unmuru Native Title Holders
State of South Australia
(2016) 337 ALR 362
(2017) 346 ALR 247
(2000) 104 FCR 494