Penangk on behalf of the members of the Kwaty and Tywerl Landholding Groups v Northern Territory of Australia

Federal Court of Australia|2017-04-05|Before: Griffiths J

The application of s 87 to the application 36 I find that the requirements of s 87 of the Act are satisfied in the present case. In particular: (a) the period specified in the notice given under s 66 ended on 20 January 2010 (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 (s 87 (1)(b)) of the Act; (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 is no approved determination of native title (s 13(1)(a)); (iii) the Minute complies with ss 94A and 225 of the Act (s 87 (1)(c)); (e) it is appropriate that the Court make the orders sought because: (i) the parties are legally represented; (ii) the Northern Territory as respondent obtained searches of land tenure and mining and other relevant interests to determine the extent of "other interests" within the proposed determination area and provided copies of those searches to all parties; (iii) the parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in paragraphs 6 to 9 of the Minute (s 225(c)); (iv) there are no other proceedings before the Court relating to native title determination applications that 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 (ss 87(1) and (2)); (v) the Northern Territory as respondent has played an active role in the negotiation of the consent determination. In doing so, the Territory, acting on behalf of the community generally, having had regard to the requirements of the Act and having conducted an appropriate assessment process, is satisfied that the determination is justified in all the circumstances. 37 The Court will now make orders in accordance with the Minute by consent. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Minerals Acquisition Act 1953(NT)s 2

Native Title Act 1993(Cth)ss 13, 57, 61, 66, 87, 94A, 223, 225, 251D, 253

REASONS FOR JUDGMENT 1 Today, the Court will make orders by consent which recognise that the Kwaty and Tywerl landholding groups have, and always have had, native title rights and interests in land within the area the subject of the application. 2 It is desirable to say something first about the Native Title Act (1993) (Cth) (the Act). As Jagot J noted in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604, the Act takes a relatively rare form. In particular, the Preamble to the Act leaves little or no doubt as to why the Act was enacted and the objectives it was intended to achieve. Relevant parts of the Preamble include as follows: The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society. … The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. … A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. 3 As her Honour further noted, the Act is significant because it creates a special procedure for the just and proper ascertainment of native title rights and interests so as to ensure that, wherever possible, those rights and interests be established by conciliation rather than by contested, lengthy and expensive litigation. 4 I congratulate the parties in this proceeding for having finalised proposed orders by consent. 5 It is appropriate to now set out some uncontroversial background matters.

Why it is appropriate for the Court to make the orders sought 30 The Court is asked to make orders under s 87 of the Act in accordance with the agreed terms of the parties. 31 In support of this application, the following documents have been filed: (a) Amended Minute of Proposed Orders and Determination of Native Title over part of Aileron Pastoral Lease and part of Pine Hill Pastoral Lease by Consent dated 20 March 2017 which has been signed by the parties (Minute); (b) Statement of Joint Agreed Facts by the applicant and the Northern Territory in support of the Minute; and (c) Joint Submission of the applicant and the Northern Territory in support of the Minute. 32 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) the period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) there is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) the terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87 (1)(b)); (d) the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87 (1)(c)); and (e) the Court considers that it would be appropriate to make the order sought (ss 87(1A) and (2)). 33 In addition, the Court must have regard to the following matters: (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; and (c) whether all the requirements of the Act have been complied with. 34 The focus of the Court in considering whether the orders sought are appropriate under ss 87(1A) 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] and [37] that: The Act [Native Title 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. 35 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: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it can consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally, which essentially involves the State satisfying itself that there is a credible basis for the application: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J and Yaegl People #1 v Attorney-General of New South Wales [2015] FCA 647 at [9] per Jagot J.

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