Riley on behalf of the Burdal Riley, Murrungun Wunubari and Mambali Walangara Estate Groups v Northern Territory of Australia

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

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:

There be a determination of native title in terms of the Determination set out below.
The native title is not to be held on trust.
The Top End (Default PBC/CLA) Aboriginal Corporation be appointed as the prescribed body corporate for the purposes of s 57(2) of the Act in respect of the area the subject of the Determination.
There be no order as to costs.
The Parties have liberty to apply to establish the precise location and boundaries of public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Schedule D of this Determination.

The Determination Area is the land and waters described in Schedule A hereto and depicted on the map comprising Schedule B.
Native title exists in those parts of the Determination Area identified in Schedule C.
Native title does not exist in those parts of the Determination Area identified in Schedule D.
In the event of any inconsistency between a description of an area in a Schedule and the depiction of that area on the map in Schedule B, the written description will prevail.

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.

The native title rights and interests of the estate group members referred to in clause 5 in relation to those parts of the Determination Area identified in Schedule C, being an area where there has been partial extinguishment of native title, are the rights: (a) to access, remain on and use the areas; (b) to access and to take for any purpose the resources of the areas; and (c) to protect places, areas and things of traditional significance.
The native title rights and interests of the persons referred to in clause 7 above in relation to those parts of the Determination Area identified in Schedule C, being an area where there has been partial extinguishment of native title, are the rights: (a) to access, remain on and use the areas; and (b) to access the resources of the areas.
The native title rights and interests do not confer on the native title holders: (a) possession, occupation, use and enjoyment of those parts of the Determination Area identified in Schedule C to the exclusion of all others; (b) any right to control the access to and use of those parts of the land and waters of the areas or their resources; (c) any right to access or take: (i) water captured by the holders of Pastoral Lease No. 757; or (ii) resources that are the private or personal property of another, including but not limited to: A. infrastructure or fixtures; B. chattels, equipment, machinery or supplies; C. animals, including stock within the meaning of the Pastoral Land Act 1992 (NT) and the progeny of any such animal, that are the private or personal property of another; and D. plants, crops and grasses that are the private or personal property of another.
The native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the native title holders; and (b) the laws of the Northern Territory of Australia and the Commonwealth of Australia.
There are no native title rights and interests in: (a) minerals (as defined in s 2 of the Minerals (Acquisition) Act 1953 (NT)); (b) petroleum (as defined in s 5 of the Petroleum Act 1984 (NT)); or (c) prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)), in the Determination Area.

Without limiting the native title rights and interests described in clauses 9 and 10 in any way, and without purporting to describe exhaustively the activities which those rights authorise or permit, the rights and interests referred to in clause 9 enable the estate group members referred to in clause 5 to: (a) travel over, move about and access those areas; (b) hunt and fish on the land and waters of those areas; (c) gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) take and to use the natural water on those areas, but this right does not include the right to take or use water captured by the holders of Pastoral Lease No. 757. (e) live and camp on the areas, and to erect shelters and other structures on those areas; (f) light fires for domestic purposes; (g) conduct and participate in the following activities on those areas: (i) cultural activities; (ii) cultural practices relating to birth and death, including burial rites; (iii) ceremonies; (iv) meetings; (v) teaching the physical and spiritual attributes of sites and places on those areas that are of traditional significance; (h) maintain and protect sites and places on those areas that are of traditional significance; (i) be accompanied onto 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 those areas; (ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and (iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas.

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) in relation to NT portion 1333, the rights and interests of the holder of Pastoral Lease No. 757; (b) 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 Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: A. to inspect land; B. to install and operate telecommunications facilities; and C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (iii) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties; and (iv) under any lease, licence, access agreement, permit or easement relating to its telecommunications facilities in the Determination Area; (c) the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples in Pastoral Lease No. 757 made by s 38 of the Pastoral Land Act 1992 (NT); (d) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (e) 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; (f) the rights to water lawfully captured by the holders of other interests; (g) 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; (h) the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT) and the Petroleum Act 1984 (NT), depicted in Schedule E: (i) Exploration Licence Title No. 30152 granted on 9 June 2009; (ii) Exploration Licence Title No. 30137, granted on 9 June 2009; (iii) Exploration Licence Title No. 31354, granted on 14 May 2018; (iv) Exploration Licence Title No. 29022, granted on 25 July 2012; (v) Exploration Licence Title No. 30494, granted on 8 April 2015; (vi) Exploration Licence Title No. 26836, granted on 9 June 2009; (vii) Exploration Licence Title No. 26833, granted on 9 June 2009; (viii) Exploration Licence Title No. 30048 granted on 3 June 2005; (ix) Exploration Licence Title No. 30158, granted on 9 June 2009; (x) Exploration Licence Title No. 26835 granted on 9 June 2009; (xi) Exploration Licence Title No. 26939 granted on 9 June 2009; (xii) Exploration Licence Title No. 30305 granted on 9 June 2009; (xiii) Access Authority No. 29691, granted on 8 November 2012; (xiv) Extractive Mineral Permit No. 30340, granted on 7 January 2020; (xv) Extractive Mineral Permit No. 30347, granted on 7 January 2020; (xvi) Exploration Permit No. 184, granted on 21 August 2013; and (xvii) Exploration Permit No. 176, granted on 29 June 2011.

Relationship between the native title and other interests

The other rights and interests referred to in clause 15, and the doing of an activity in giving effect to them or of an activity required or permitted by them, prevail over but do not extinguish the native title rights and interests referred to in clauses 9 and 10, and the existence and exercise of the native title rights and interests do not prevent the carrying on of any such activity.

In this determination, unless the contrary intention appears: "the Act" means the Native Title Act 1993 (Cth); "land" and "waters" respectively have the same meanings as in the Act; "resources" for the purposes of clauses 9 and 10 of this Determination does not include minerals, petroleum and prescribed substances; "the Commonwealth" means the Commonwealth of Australia; and "the Northern Territory" means the Northern Territory of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Description of Determination Area The Determination Area comprises the following areas of land:

NT Portion 1333, being land and waters the subject of Pastoral Lease No. 757.

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:

NT Portion 1333, being land and waters the subject of Pastoral Lease No. 757 except those parts thereof referred to in Schedule D.

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

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) public roads, whether rural roads, arterial roads or national highways; (b) community and pastoral access roads which are not otherwise public roads; (c) gravel pits adjacent to the roads referred to at paragraphs (a) and (b) hereof used to maintain those roads; (d) access roads or tracks to the public works referred to in this clause; (e) Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads; (f) river and rain gauges; (g) transmission and distribution water pipes and associated infrastructure; (h) sewer pipes, sewer pump stations and associated infrastructure; and (i) electricity transmission lines, towers, poles and associated infrastructure.

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.

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Native Title Act 1993(Cth)ss 57, 66, 67, 68, 87, 94A, 223, 225

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