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[2021] FCA 716
Federal Court of Australia
2021-06-29
White J
Original judgment source is linked above.
A. On 9 May 2016, the Applicant made a native title determination application over the land and waters within the bounds of the Lorella Pastoral Lease (Pastoral Lease No. 757 (the "Application"). 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 to ss 87(1)(a)(i) and 87(1)(b) of the Act, the Parties have filed in 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 are depicted on the map comprising Schedule B of the Determination (the "Determination Area"). E. The terms of the Parties' agreement involve the making of 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 are, in accordance with the traditional laws acknowledged and the traditional customs observed by them, 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:
The native title holders 5. The land and waters of the Determination Area comprise the whole or part of three estates, which are held respectively by the members of the following estate groups: (a) the Burdal Riley estate group; (b) the Murrungun Wunubari estate group; and (c) the Mambali Walangara estate group. These persons, together with the Aboriginal people referred to in clause 7, are collectively referred to as the "native title holders". 6. Each of the estate groups referred to in clause 5 includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; or (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) above. These persons are collectively referred to as the "estate group members". 7. In accordance with the traditional laws acknowledged and the traditional customs observed by the estate group members, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being: (a) members of estate groups from neighbouring estates; and (b) spouses of the estate group members. 8. Each of the estate groups referred to in clause 7(a) includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; or (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) above.
Relationship between the native title and other interests
Description of Determination Area The Determination Area comprises the following areas of land:
Areas where native title exists The areas of land and waters in respect of which the native title rights and interests in clauses 9 and 10 apply are:
Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters:
Map of interests granted under the Mineral Titles Act (NT) and Petroleum Act (NT)
Parties NTD 18 of 2016 (Lorella #2 Pastoral Lease) Applicants: Second Applicant: Rex Isaac Third Applicant: Gordon Nawundulpi Fourth Applicant: Julie Limmen Millar Fifth Applicant: Henry Nunggumajbarr Sixth Applicant: Henry Julaba Numamurdirdi
Respondents: Second Respondent: Armour Energy Limited Third Respondent: Maximus No 82 Pty Ltd
WHITE J: 1 The parties to this application for a determination of native title ask the Court to exercise its power under s 87 of the Native Title Act 1993 (Cth) (the NT Act) to make the determination of native title by consent. 2 In the reasons which follow, I explain why I consider it appropriate to make the determination sought by the parties. 3 The Applicant lodged the application for the determination of native title on 9 May 2016. By that application, they sought a determination of native title over the land and waters within the bounds of NT Portion 1333, being the land and waters the subject of Pastoral Lease No. 757 and known as the Lorella Pastoral Lease. The area involved is a little over 3,840 km2 and is located in the Gulf region of the Northern Territory. 4 The Applicant filed an amended application on 23 September 2020. 5 In support of their application that the Court make the determination by consent, the parties have, in addition to the underlying application for determination of native title, provided the Court with the following documents: (a) a copy of the proposed determination of native title signed by each of them; (b) Joint Submissions of the Applicant and the Northern Territory filed on 31 May 2021; and (c) a Statement of Joint Agreed Facts dated 31 May 2021, received under s 191 of the Evidence Act 1995 (Cth).
The statutory provisions 6 It is appropriate first to have regard to the provisions which enable the Court to make a determination by consent and which govern the way in which it should exercise that power. 7 Section 87 of the NT Act 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 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 (aa) all of the following are parties to the agreement: (i) the parties to the proceedings; (ii) the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and (b) the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, 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). … 8 As is apparent, s 87 authorises the Court to make a determination of native title if, after the end of period specified in the notice pursuant to s 66, the parties reach agreement and file the signed agreement with the Court. Each of these "procedural" requirements is satisfied in the present case. 9 Section 87 also requires Court to be satisfied that an order in, or consistent with, the agreed terms is within its power. 10 Section 94A of the NT Act requires that an order of the Court making a determination of native title set out details of the matters specified 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. 11 The expression "native title rights and interests" appearing in s 225(b) is defined in s 223(1) as follows: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.
Matters affecting the exercise of the Court's power 12 A number of matters bear upon the exercise of the Court's power to make a determination of native title. Amongst other things, the Court must have a valid application before it; there must not have been any previous determination made in respect of the proposed determination area (s 68); and the determination must not overlap the area of another application (s 67(1)). Again, each of these conditions is satisfied in the present case and I am satisfied that the Court does have the power to make the determination sought by the parties. 13 In former times, the Court's assessment of the appropriateness of the making of a determination by consent required it to hear and assess evidence bearing on that question. However, it is now established that the Court may proceed more flexibly, as s 87(2) permits the Court to make the order by consent without first conducting a hearing or receiving evidence. In this way, the Court can give effect to the policy evident in the NT Act, and well recognised in its own decisions, of encouraging parties to applications for the determination of native title to reach agreement with respect to the claims and thereby to avoid the necessity for a formal Court hearing on the applications. 14 The approach adopted by the Court has now been stated in a number of authorities, including King on behalf of the Eringa Native Title Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 in which Keane CJ said at [19]: 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 … 15 Consequently, on applications of the present kind, the Court does not routinely embark on its own enquiry into the merits of the claim in order to be satisfied that the orders sought are supportable and in accordance with the law. Instead, as the reasons of Keane CJ indicate, the Court places particular reliance on the agreement of the parties and on the State or Territory concerned discharging appropriately its responsibility in the public interest of undertaking a proper assessment of the application. 16 When considering an application for the making of a consent determination in the manner discussed in King v State of SA, the Court takes into account that its determination will bind the community generally, and not just the parties to the proceeding: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229, (2001) 115 FCR 109 at [22]; Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. 17 In addition, as was noted by Mortimer J in Freddie v Northern Territory [2017] FCA 867, the proprietary nature of the rights declared in a determination indicates that the Court must be satisfied that the determination is stated with appropriate clarity and, in particular, that the claim area, the nature of the native title rights and interests and the manner in which the other proprietary interests which may be affected, are appropriately defined. The Court is also concerned to know that the consent to the proposed determination is both free and informed and that there is a credible and rational basis for the consent of the respondents to the application.
Consideration 18 In relation to the application of the principles described above, the Applicant and the Northern Territory have submitted that the Court may accept the following matters: (a) the parties are legally represented and each has had the opportunity to obtain appropriate advice; (b) the Northern Territory, as first respondent, conducted searches of the land tenure and mining and other relevant interests to ascertain the extent of "other interests" within the determination area and provided copies of those searches to the Applicant; (c) the parties have agreed on the nature and extent of the native title rights and interests in relation to the determination area and those interests are described appropriately in clauses 9-13 of the determination; (d) there are no other proceedings before the Court relating to native title determination applications which cover any part of the area the subject of the application which would otherwise orders to be made under s 87(1) of the NT Act; and (e) the Northern Territory, as first respondent, has played an active role in the evaluation of a consent determination. In doing so, the Northern Territory, acting on behalf of the community generally, having had regard to the requirements of the NT Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances. 19 The matters disclosed in the Statement of Joint Agreed Facts provided by the Applicant and the Northern Territory support these submissions and I accept them. 20 An application for the determination of native title over the area of the Lorella Pastoral Lease was filed in 2013. In support of that application, the Applicant provided a short-form anthropological report prepared by Dr Stephen Bennetts. The report of Dr Bennetts was considered by the Northern Territory, which retained Professor Basil Sansom, an Anthropologist, to undertake a review of it. The Applicant and the Northern Territory then engaged in discussions concerning the issues about anthropological evidence raised by Professor Sansom. 21 On 18 July 2016, the Applicant discontinued the 2013 claim. The present application, known in the Court as "the Lorella #2 Application", was commenced before that discontinuance, on 9 May 2016. In support of the Lorella #2 Application, the Applicant provided the Northern Territory on 10 February 2018 with a second report from Dr Bennetts and, in addition, an anthropological report concerning a larger area, but including the area of the Lorella Pastoral Lease, prepared by Mr Stead, the anthropologist, who was also retained by the Applicant. In addition, the Applicant provided witness statements from senior native title claimants, Walter Golbong Rogers and Gordon Nawundulpi. 22 The Applicant provided a supplementary anthropological report from Ms Gay English in March 2020. 23 Each of Dr Stephens and Mr Stead has drawn on reports concerning land claims with respect to adjacent or nearby areas prepared by the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976. 24 All of this material was reviewed by the Northern Territory. 25 In these circumstances, the Court can be satisfied that the claim has been subjected to appropriate anthropological scrutiny. In particular, the Court can be satisfied that the Northern Territory has discharged its responsibility in making an appropriate assessment of the application for the determination of native title and that there is a rational basis for its agreement to the application. 26 Turning then to the matters which s 94A requires to be included in the determination and about which, inferentially, the Court must be satisfied, I note that the native title rights and interests for which the proposed determination provides satisfies the description of "native title rights and interests" in s 225(b) of the NT Act. 27 Clause 5 of the determination indicates that three estate groups will have native title over the determination area. These are the Burdal Riley estate group, the Murrungun Wunubari estate group, and the Mambali Walangara estate group. The determination will also provide that other Aboriginal persons will have native title rights and interests in the determination area, these being members of estate groups from neighbouring estates, and the spouses of the estate group members. The native title rights and interests of these persons will be subject to the native title rights and interests of the group members. 28 Clauses 6 and 8 contain details of the means by which membership of one or more of the estate groups may be identified. 29 The native title rights and interests with respect to the determination area are contained in clause 9 and 10. 30 The determination area is defined in clause 1. 31 The "other interests" which s 225(c) of the NT Act refers are identified in clause 15 and clause 16 provides for the relationship between the other rights and interests and the determined native title rights and interests, as required by s 225(d). 32 Proposed Order 2 will state that the native title is not to be held on trust. Proposed Order 3 appoints the Top End (Default PBC/CLA) Aboriginal Corporation as the prescribed body corporate for the purposes of s 57(2) of the NT Act and to perform the functions outlined in s 57(3).
General 33 The Court is not aware of any circumstance which would indicate that the making of the determination in the terms proposed by the parties is inappropriate. As already indicated, it is apparent that all the parties have had the opportunity to obtain independent legal advice with the consequence that it is not to be supposed that a lack of legal representation has caused disadvantage to any party. 34 For these reasons, I am satisfied that it is appropriate to give effect the parties' agreement by making the determination by consent. It is, however, important to add that the Court's order will not amount to a grant of native title to the estate groups. The order is instead a public and formal recognition that the native title rights and interests of the estate groups exist, and have always existed, at least since European settlement. 35 I will make orders in the terms proposed by the parties. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Riley on behalf of the Burdal Riley, Murrungun Wunubari and Mambali Walangara Estate Groups
Northern Territory of Australia