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[2012] FCA 223
Federal Court of Australia
2012-03-21
Finn J
Original judgment source is linked above.
The Application of s 87 to the Application 7 The requirements of s 87 of the Act have been satisfied in the present case. In particular: (i) the period specified in the notice given under s 66 ended on 4 August 2004 (s 87(1)), and there was no requirement to notify the Amended Application filed on 13 January 2011 because the amendments did not result in any change to the land or waters covered by the Application (s 66A(1)); (ii) the Parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i)); (iii) the Parties have recorded their agreement in the Minute (s 87(1)(b)); (iv) an order in terms of or consistent with the Minute would be within the Court's power because: (a) the Application, as amended with the leave of the Court on 16 March 2011, is valid and was made in accordance with s 61 of the Act; (b) 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)); (c) the Minute complies with ss 94A and 225 of the Act (s 87(1)(c)). 8 It is appropriate that the Court make the orders sought because: (i) all the Parties are legally represented; (ii) the Northern Territory as First Respondent obtained searches of land and mining tenure and other relevant interests to determine the extent of "other interests" within the proposed Determination Area and made those available to the Parties; (iii) the Parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described in paragraph 11, and Schedules C, D and E 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)); and (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 Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances. 9 I would note in relation to the territory's assessment process that, in relation to the "connection requirement" of s 223(1)(c) of the Act, the Applicant filed a "Report on Native Title Interests", "Genealogies", and "Notice of Native Title Rights and Interests" ("Connection Material"). The Connection Material was prepared by Robert Graham, Nadia Ronay and Samantha Ebsworth, anthropologists employed by the Northern Land Council and tasked to address, on behalf of the Applicant, the Northern Territory's Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009. 10 The Connection Material was considered by the First Respondent, which sought advice about the Connection Material (and the additional material referred to below) from consultant anthropologist, Emeritus Professor Basil Sansom. The First Respondent raised various contentions about the Connection Material with the Applicant. 11 In response, the Applicant filed the following additional material: (i) "Revised Genealogies" on 10 June 2010; (ii) the "Applicant's Response to the Respondent's Contentions on the Applicant's Report on Native Title Interests" on 16 July 2010; and (iii) the Amended Application on 16 March 2011. 12 Ultimately, the Applicant and the First Respondent reached agreement that the native title claim group named in Schedule A of the amended Application and in the Connection Material (including the additional material) are the persons who hold the claimed native title rights and interests in the Determination Area. The Second to Eighth Respondents do not dispute the claim of the Applicant as to which persons hold the claimed native title rights and interests in the Determination Area. 13 In relation to issues of extinguishment of native title, I note that the Territory filed an "Extinguishing Tenure and Public Works Table" and supporting documentation which contained an analysis of the extinguishment of native title in the Determination Area based upon the grant of tenure and the construction or establishment of public works. 14 After the exchange of contentions, the Applicant and representatives of the Territory subsequently met and exchanged correspondence in relation to their various contentions on extinguishment on a number of occasions. They reached agreement as to those parts of the Determination Area in which native title does, and does not, exist and, in respect of those areas where it does exist, as to the nature and extent of the native title rights and interests so subsisting. 15 The Parties agree that the pre-conditions to the application of ss 47A and 47B of the Act have been met in relation to the "exclusive areas" identified in the Minute, with the result that any extinguishment of native title by the creation of any prior interest in relation to those areas must be disregarded in accordance with those provisions. 16 The Minute reflects that native title rights and interests in the "exclusive areas" comprise possession, occupation, use and enjoyment to the exclusion of all others, and that the non-extinguishment principle applies to the areas the subject of the grant to the Mataranka Aboriginal Land Trust pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). 17 Finally I would note that for the purposes of s 56 of the Act the native title is not to be held on trust and that the consent orders provide appropriately for a prescribed body corporate to be nominated for the purposes of s 57(2) and (3) of the Act.
Conclusion 18 It is entirely appropriate that (i) having noted the matters referred to in the Minute; and (ii) being satisfied that the proposed determination is within the power of the Court, I make the orders and the determination pursuant to s 87 of the Act that have been agreed by the parties and which are contained in the Minute signed by them. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Roberts on behalf of the Najig and the Guyanggan Nganawirdbird Groups
Northern Territory of Australia
Section 87 of the Act 4 The Court's focus in considering whether the orders sought by the parties are appropriate to be made, is upon the agreement made by them. As was said by North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]: The 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) 15 FCR 109; [2001] FCA 1229. 5 It is, in other words, unnecessary for me to make my own inquiry as to the merits of the claims made in the application in order to be satisfied that the orders sought are supportable and in accordance with the law: see Cox on behalf of the Yungngara People v State of Western Australia [2007] FCA 588 at [3]; Wavehill on behalf of the Ngapurrpinkakujarra Group v Northern Territory of Australia [2011] FCA 584 at [10]. 6 This is not to say that the Court will refrain from looking at the evidence if, in the circumstances, it feels the need to satisfy itself that the parties, but particularly, the State or Territory on behalf of its community generally, are acting in good faith and rationally: see Munn on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [30]. And it is the case that the circumstances of the individual case may well suggest particular matters about which the Court will need to be satisfied and which will require it to receive evidence or to be provided with "appropriate assurances": see generally Munn at [24]-[33].
(2007) 115 FCR 109
(2002) 117 FCR 6
(2001) 15 FCR 109
(2001) 115 FCR 109