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[2016] FCA 304
Federal Court of Australia
2016-04-07
Reeves J
Original judgment source is linked above.
THE COURT NOTES THAT: A. The applicant in this proceeding, NTD 17 of 2011, has made a native title determination application ("the application") that relates to an area of land and waters which is the subject of a proposed determination of native title ("the determination"). B. The applicant, the Northern Territory of Australia and the pastoral respondents ("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 s 87(1)(a)(i) and s 87(1)(b) of the Native Title Act 1993 (Cth) (the NTA) the parties hereby file with this Court their agreement in writing. D. Pursuant to s 87 and s 94A of the NTA 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 NTA and by the consent of the parties:
THE COURT ORDERS THAT:
The determination area
The native title holders 4. The determination area comprises 13 estate areas associated with the Akalperre, Amakweng, Alapanp, Arlwekarr, Arlpawe, Arnerre, Arnmanapwenty, Errene/Warlekerlange, Errweltye, Kwerrkepentye, Rtwerrpe, Tyarre Tyarre and Wake landholding groups respectively. 5. The persons who hold the common or group rights comprising the native title are the Aboriginal persons who are: (a) members of one or more of the landholding groups referred to in paragraph 4 by virtue of descent (including adoption) through father's father, father's mother, mother's father and mother's mother; (b) accepted as members of one or more of the landholding groups referred to in paragraph 4 by senior members of a landholding group, referred to in sub-paragraph (a), by virtue of the following non-descent connections to an estate: (i) spiritual identification with and responsibility for an estate; (ii) conception and/or birthplace affiliation with an estate; (iii) long-term residence in an estate; (iv) close kinship ties, including intermarriage; (v) shared section/subsection and/or moiety affiliation; (vi) a more distant ancestral connection to an estate, for example, mother's father's mother; (vii) possession of secular knowledge of an estate; (viii) possession of traditional religious knowledge, authority and responsibility for an estate; (ix) authority and responsibility for shared Dreaming tracks and/or places of significance connected with an estate; (x) seniority in traditional matters concerning the claim group and/or the estate.
Native title rights and interests 6. In relation to NT Portions 655, 1092, 3375 (part), 4336 (part), 4337, 4338, 4344, 4345, 4346, 5017 (part), 5613 and 5841 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 969 and Perpetual Pastoral Lease 1103 respectively; (f) the right to light fires for domestic purposes, but not for the clearance of vegetation; (g) 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; (h) 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; (i) 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; (j) the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources; (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. 7. The native title rights and interests referred to in paragraph 6 do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others. 8. 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.
Other rights and interests 9. The nature and extent of the other interests in the determination area are: (a) in relation to NT Portion 655, NT Portion 1092 and NT Portion 5841 the interests of: (i) Stirling Station Pty Ltd as the holder of Perpetual Pastoral Lease No. 1103; and (ii) Andrew McCarthy and Helen Elizabeth McCarthy and Matthew McCarthy and Anita Theresa McCarthy as the registered sublessees of part of Perpetual Pastoral Lease No. 1103. (b) in relation to NT Portion 3375, the interests of Charles Oliver Frith and Elizabeth Ann Frith as the holders of Perpetual Pastoral Lease No. 969. (c) NT Portions 5017 and 5613 - the interest of AustralAsia Railway Corporation under Crown Lease Term 1879. (d) NT Portions 4338, 4344, 4345 and 4346 - valid rights of use for the passage of travelling stock in relation to the North-South Stock Route. (e) The interests of the parties in respect to NT Portion 4336 under the Neutral Junction Locality Indigenous Land Use Agreement. (f) NT Portion 4337 - valid rights of use for travelling stock. (g) the interests of the holders of the following mining tenures granted pursuant to the Mining Act (NT): EL 23186 Cleaver, Robert Bruce, Imperial Granite & Minerals Pty Ltd, Goldstake Explorations Inc EL 24253 Mithril Resources Ltd EL 26543 Uramet Minerals Limited EL 26748 Uramet Minerals Limited EL 27069 Enigma Mining Limited EL 27070 Enigma Mining Limited EL 27115 Toro Energy Limited EL 27138 Toro Energy Limited EL 27516 Uramet Minerals Limited EL 27787 Enigma Mining Limited EL 27941 Enigma Mining Limited EL 28211 Afmeco Mining And Exploration Pty Ltd EL 28296 Ao-Zhong International Mineral Resources Pty Ltd EL 28300 Ao-Zhong International Mineral Resources Pty Ltd EL 28491 Enigma Mining Limited EL 28515 ABM Resources NL EL 28521 Imperial Granite & Minerals Pty Ltd EL 28615 Lennartz, Rudolf Karl EL 28727 ABM Resources NL EL 29285 Ao-Zhong International Mineral Resources Pty Ltd EL 29382 Ao-Zhong International Mineral Resources Pty Ltd EL 29578 Enigma Mining Limited EL 29723 ABM Resources NL EL 29724 ABM Resources NL EL 29725 ABM Resources NL EL 29726 ABM Resources NL EL 29727 ABM Resources NL EL 29735 Wuhua Mining Corporation Pty Ltd EL 29736 Wuhua Mining Corporation Pty Ltd EL 29867 Enigma Mining Limited EL 29896 ABM Resources NL EL 30129 Tom Oates EL 30130 Tom Oates ELR 29627 Enigma Mining Limited SEL 26825 Newmont Tanami Pty Ltd (h) 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), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Acts 1989 (Cth), the Telecommunications Act 1991 (Cth) and under Schedule 3 to the Telecommunications Act 1997 (Cth), including the right: A. to inspect land; B. to install and operate telecommunication facilities; C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities; and (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 or easement relating to its telecommunications facilities within the determination area. (i) the rights and interests of APT Gas Pty Ltd: (i) as the beneficiary of the rights and interests under an energy supply easement granted to the Northern Territory of Australia for the purpose of the construction, operation and maintenance of the Amadeus Basin to Darwin gas pipeline and related infrastructure; and (ii) as the holder of Pipeline Licence No. 4 granted under the Energy Pipelines Act (NT). (j) in relation to NT Portions 655, 1092, 5841, 3375 (part) and 4336 (part) the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases identified in section 38(2) to (6) of the Pastoral Land Act (NT); (k) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act (NT); (l) 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; (m) 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. (n) in relation to that part of NT Portion 3375 comprising proposed NT Portion 6058 (Neutral Junction homestead heritage site), the interest of the Northern Territory of Australia under the Heritage Act (NT). 10. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 in relation to NT Portions 655, 1092, 3375 (part), 4336 (part), 4337, 4338, 4344, 4345, 4346 and 5841 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. 11. In relation to NT Portions 5017 (part) and 5613 the relationship between the native title rights and interests referred to in paragraph 6 and the interest of the AustralAsia Railway Corporation referred to in paragraph 9 is that the lease granted to the Corporation: (a) is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests; (b) the native title continues to exist, but has no effect in relation to the grant; (c) if the grant or its effect is wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; (d) if the grant or its effect is removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent.
Other matters 12. There are no native title rights and interests in: (a) minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT)); (b) petroleum (as defined in s 5 of the Petroleum Act (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)). 13. 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 NTA has the same meaning in this determination as it has in the NTA.
Schedule A
Schedule C Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters.
Public works
INTRODUCTION 1 The area the subject of this native title determination application comprises approximately 10,000 square kilometres of land situated approximately 300 kilometres north of Alice Springs. The area is located in Kaytetye, Anmatyerr and Warumungu territory. 2 Two perpetual pastoral leases (PPL No. 1103 and PPL No. 969) issued under the Pastoral Land Act (NT) have existed over a large part of the claim area since 1 June 1993 and 9 May 1988, respectively. That period of around 30 years is recent history in the context of the native title claimants' relationship with the land comprising the claim area. However, as is the practice of the Court in dealing with native title claims over pastoral leases in the Northern Territory, this matter has been assigned the short title of "Stirling and Neutral Junction": the name of the two pastoral leases. 3 The native title claimants are members of a society who share a body of laws and customs which originate in the "Altyerre" in the Kaytetye and Anmatyerr languages and "Wirnkarra" in Warumungu language, or the "Dreaming", or "Dreamtime", in English. They believe that the physical and cultural landscape, the legal, social, kinship and religious systems, and the conditions for their continuity were established by spiritual ancestors who travelled on, above or below the land in the "Altyerre"/"Wirnkarra". 4 The sites associated with "Altyerre"/"Wirnkarra" (or the Dreaming) form the "countries" in Aboriginal English, or "estates" as they are often referred to by anthropologists, which are affiliated with 13 landholding groups. They comprise the Akalperre, Amakweng, Alapanp, Arlwekarr, Arlpawe, Arnerre, Arnmanapwenty, Errene/Warlekerlange, Errweltye, Kwerrkepentye, Rtwerrpe, Tyarre Tyarre and Wake landholding groups. 5 While the current amended form of the Stirling and Neutral Junction application has only been on foot since 19 September 2013, it was first filed on 19 July 2011. The application and amended application were authorised at meetings of the native title claim group on 12 July 2011 and 25 July 2013, respectively. 6 Under the current amended application, the authorised applicant is constituted by the following members: (a) Norman Price Pwerle (b) Tommy Thompson Kngwarreye (c) Tommy Walkabout Thangale (d) Lenny Nelson. 7 Aside from the applicant, the other parties to this application are the Northern Territory of Australia; Charles Oliver Frith and Elizabeth Ann Frith; Andrew McCarthy, Helen Elizabeth McCarthy, Matthew McCarthy and Anita Theresa McCarthy; Stirling Station Pty Ltd and Telstra Corporation Limited. The Commonwealth of Australia ceased to be a party on 8 February 2012. 8 Negotiations for a consent determination of native title have been progressing for several years. In July 2012, the applicant provided the Northern Territory of Australia with the anthropological evidence, as well as dreaming and site maps. Further research was subsequently conducted, which resulted in the amendment of the application in September 2013 to alter the estate groups and to correct the orthography used with respect to them. In June 2013, the Northern Territory of Australia provided the applicant with an analysis of the extinguishment of native title in the determination area. Based on this analysis, the claim area was amended in September 2013. The parties have now agreed as to the identification of those parts of the determination area in which native title does, and does not, exist. 9 Recently, the parties informed the Court that they had agreed on the terms of a proposed consent determination under s 87 of the Native Title Act 1993 (Cth) (the NTA). On 18 March 2016, the parties filed executed consent orders, a statement of agreed facts and joint submissions. In these materials, the parties requested the Court to make a determination of native title in the terms of their agreement under s 87 of the NTA.
SECTION 87 OF THE NTA 10 Section 87 of the NTA empowers the Court to make an order consistent with the terms of a written agreement between the parties to native title proceedings without holding a hearing in the proceedings. Before the Court can exercise that power, the conditions specified in s 87(1) must be satisfied. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out the five criteria that the parties need to meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of those criteria and consider whether they have been met in this application. 11 The first criterion is that the notice period under s 66 of the NTA must have ended: s 87(1). The Stirling and Neutral Junction application was notified by the Registrar on 2 November 2011. The period specified in that notice expired on 1 February 2012. Since the 2013 amendments to the application resulted in a change to the area of land and waters covered by the application, on 14 February 2014, the Registrar provided written notice of the amended application to the parties pursuant to s 66A of the NTA. I am therefore satisfied that this first criterion, as to notice under s 66 of the NTA, has been met. 12 The second criterion is that the agreement that has been reached must relate to the whole of the proceedings, or to a part of the proceedings, or to a matter arising out of the proceedings: s 87(1)(a). The executed consent orders filed with the Court show that the agreement relates to the whole of this proceeding. This second criterion has therefore been met. 13 The third criterion is that the agreement that has been reached must be reduced to writing, signed by the parties and filed with the Court: s 87(1)(b). As I have already noted above, executed consent orders have been filed with the Court. This criterion has also been satisfied. 14 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I observed (at [4]): An order will be within the power of the Court if it is consistent with s 94A of the [NTA], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination. 15 Section 94A of the NTA requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 defines "determination of native title" as follows: 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 and 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. (Emphasis in original.) 16 I have examined the proposed consent determination as outlined in the consent orders executed by the parties. I am satisfied that each of the matters referred to in s 225(a) to (e) above is appropriately articulated therein and the rights and interests so described are recognisable by the common law of Australia. 17 Based on the records of the National Native Title Register kept under Pt 8 of the NTA, I am satisfied that there is no determination of native title in existence over the area the subject of this proposed consent determination. 18 I am therefore satisfied that a determination of native title in the terms sought by the parties would be within the power of the Court. 19 Finally, before the Court makes a native title determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the NTA. In Nelson, I noted (at [7]) that these words: ... have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28]. 20 After canvassing the authorities relevant to this question in Nelson, I identified (at [14]) the following principles: (a) the central issue is whether there exists a free and informed agreement between the parties; (b) in determining whether such an agreement exists, the following factors will be critical: (i) the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title; (ii) whether the parties have independent and competent legal representation: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn) at [29], [39] and [40] and Lovett v Victoria [2007] FCA 474 at [39]-[40]; (iii) whether the terms of the proposed order are unambiguous and clear: Munn at [32]; and (iv) whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42]. 21 In their joint submissions, the parties submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because: (i) the Parties are legally represented; (ii) the Northern Territory as First 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 7 to 13 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 [NTA] (ss 87(1) and (2)); (v) the Northern Territory as First 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 [NTA] and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances. 22 Having regard to these joint submissions and my review of the materials filed with the Court, subject to the further matter addressed immediately below, I am satisfied that it is appropriate to make the proposed consent determination. 23 As to the principle set out in [20(b)(iii)] above, I have examined the executed consent orders filed by the parties and I consider that its terms are unambiguous and clear.
PRESCRIBED BODY CORPORATE 24 Order 2 of the proposed native title consent determination is to the effect that the native title in question is not to be held on trust. Accordingly, there is no need for me to make a nomination under s 56 of the NTA. However, in these circumstances, s 57(2) of the NTA requires certain steps to be taken to determine which prescribed body corporate is to perform the functions prescribed in s 57(3). 25 On this aspect, the agreement signed by the parties seeks a determination that the Eynewantheyne Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57(2) and to perform the functions prescribed in s 57(3). That agreement is supported by the affidavit of Susan Polden, a lawyer employed by the Central Land Council, in which she deposes that, at a meeting of the native title claim group held on 25 July 2013, the Eynewantheyne Aboriginal Corporation (ICN: 7947) was nominated by the claim group to be their prescribed body corporate and that the members of the Eynewantheyne Aboriginal Corporation consented to being so nominated. 26 Accordingly, as required by s 57(2)(b), I determine that the Eynewantheyne Aboriginal Corporation is to be the prescribed body corporate to perform the functions prescribed in s 57(3) of the NTA.
CONCLUSION 27 In conclusion, it is important to record that one of the central objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement leading to this consent determination therefore serve to advance that central object. I congratulate the parties for reaching the agreement to achieve this native title consent determination. 28 It is also worth adding that the orders that will now be made do not create native title in the claim area. Instead, this consent determination marks the recognition by the Australian legal system of the long held and pre-existing native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the 13 landholding groups, since long before it was given the name Stirling and Neutral Junction. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
SCHEDULE OF PARTIES NTD 17 of 2011 Respondents Fourth Respondent: STIRLING STATION PTY LTD Fifth Respondent: TELSTRA CORPORATION LIMITED
Pwerle
Northern Territory