Saltmere on behalf of the Indjalandji-Dhidhanu People v Northern Territory of Australia

Federal Court of Australia|2022-09-08|Before: Moshinsky J

A. On 8 May 2001, the second applicant made a native title determination application over the land and waters the subject of several future act notices issued under s 29 of the Native Title Act 1993 (Cth) (the Act), which application is designated NTD6030/2001. The application area in NTD6030/2001 covers part of the Rocklands Pastoral Lease (Pastoral Lease No. 965). B. On 3 July 2002, the third applicant made a native title determination application over the land and waters the subject of several future act notices issued under s 29 of the Act, which application is designated NTD6016/2002. The application area in NTD6016/2002 covers part of the Rocklands Pastoral Lease (Pastoral Lease No. 965). C. On 25 July 2019, the first applicant made a native title determination application over the land and waters within the bounds of the Rocklands Pastoral Lease (Pastoral Lease No. 965) (the Application). D. On 5 August 2022, the Court made orders pursuant to s 67 of the Act which required NTD25/2019 and those portions of NTD6030/2001 and NTD6016/2002 which overlap with a portion of NTD25/2019 to be dealt with together (the Proceeding). The overlapping portion of NTD6030/2001 is referred to as "Part A" of that proceeding and the overlapping portion of NTD6016/2002 is referred to as "Part A" of that proceeding. E. The applicants and the respondents to the 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. F. Pursuant to ss 87(1), 87A(1) and 87A(2) of the Act, the Parties have filed with the Court their agreement in writing as to the determination of native title set out below (the Determination). The external boundaries of the area subject to the Determination are described in Schedule A of the Determination and depicted on the map comprising Schedule B of the Determination (the Determination Area). G. Pursuant to ss 87, 87A and 94A of the Act, 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. H. The Parties acknowledge that the effect of making the Determination is that the members of the native title claim group in NTD25/2019, in accordance with the traditional laws acknowledged and the traditional customs observed by them, be recognised as the native title holders for the Determination Area as provided by the Determination. I. The Parties request that the Court hear and determine the 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 ss 87 and 87A of the Act and with 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.
Indjalandji-Dhidhanu Aboriginal Corporation RNTBC (ICN 7791) 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 paragraph 1 of Schedule D of this Determination.

The Determination Area

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
The native title in the land and waters of the Determination Area is held by the Indjalandji-Dhidhanu people. These persons, together with the Aboriginal people referred to in clause 7, are collectively referred to as the "native title holders".
The Indjalandji-Dhidhanu people referred to in clause 5 include persons who are members of that group by reason of: (a) descent from the following Indjalandji-Dhidhanu ancestors: (i) Idaya and his son Dijeru; (ii) Kaduka (also known as Annie) including through her son Frank Monkhouse; or (iii) Georgina Jackson and her partner Burketown Willy, including through their son Tom Fraser; (b) having been adopted or incorporated into the descent relationship referred to above. These persons are collectively referred to as the "group members".
In accordance with the traditional laws acknowledged and the traditional customs observed by the 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 group members, such people being: (a) members of neighbouring native title holding groups or estate groups; and (b) spouses of the group members. The native title rights and interests
The native title rights and interests of the group members referred to in clause 6 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 area; (b) to access and to take for any purpose the resources of the area; 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 area; and (b) to access the resources of the area.
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 area or its resources; (c) any right to access or take: (i) water captured by the holders of Pastoral Lease No. 965; 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. Non-exhaustive List of Activities
Without limiting the native title rights and interests described in clauses 8 and 9 in any way, and without purporting to exhaustively describe the activities which those rights authorise or permit, the rights and interests referred to in clause 8 enable the group members referred to in clause 6 to: (a) travel over, move about and access the area; (b) hunt and fish on the land and waters of the area; (c) gather and to use the natural resources of the area such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) take and to use the natural water on the area, but this right does not include the right to take or use water captured by the holders of Pastoral Lease No. 965; (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 the area: (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 the area that are of traditional significance; (h) maintain and protect sites and places on the area 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 the area; (ii) people who have rights in relation to the area according to the traditional laws and customs acknowledged by the group members; and (iii) people required by the group members to assist in, observe, or record traditional activities on the area. Other interests in the Determination Area
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 1482, the rights and interests of the holder of Pastoral Lease No. 965; (b) in relation to NT Portion 1482, valid rights of use for the passage of travelling stock over the area of land known as the Barkly Stock route, declared in Northern Territory Gazette No. S83, 26 November 1986; (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. 965 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. 32544 granted on 29 June 2021; and (ii) Exploration Permit Title No. 144 granted on 21 May 2013. Relationship between the native title and other interests
The other rights and interests referred to in clause 14, 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 8 and 9, and the existence and exercise of the native title rights and interests do not prevent the carrying on of any such activity. Definitions
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 8 and 9 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. SCHEDULE A Description of Determination Area The Determination Area comprises the following area:
NT Portion 1482, being land and waters the subject of Pastoral Lease No. 965. The Determination Area does not include the area known as the Austral Downs Access Road, being a strip of land 100m wide as shown on the map at Schedule B. SCHEDULE B Map of Determination Area SCHEDULE C Areas where native title exists The area of land and waters in respect of which the native title rights and interests in clauses 8 and 9 apply is the Determination Area as described in Schedule A, except those parts referred to in Schedule D. 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:
1. Subject to paragraph 2 below, 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) river and rain gauges; (b) transmission and distribution water pipes and associated infrastructure; (c) sewer pipes, sewer pump stations and associated infrastructure; (d) electricity transmission lines, towers, poles and associated infrastructure; and (e) government bores and associated infrastructure.
2. The parties agree that the Determination Area is not covered by public works as defined in s 253 of the Act of the following description: (a) public roads, whether rural roads, arterial roads or national highways; or (b) community and pastoral access roads which are not otherwise public roads. SCHEDULE E Map of interests under the Mineral Titles Act 2010 (NT) and Petroleum Act 1984 (NT)

Introduction 1 The parties to three proceedings have applied for consent orders, and a consent determination of native title, to be made under ss 87 and 87A of the Native Title Act 1993 (Cth). The area that is the subject of the proposed determination comprises approximately 3,533 square kilometres of land situated in the Northern Territory of Australia, adjacent to the border between the Northern Territory and Queensland, and in the vicinity of the Barkly Highway. 2 The main proceeding for present purposes is NTD25/2019. The applicants to this proceeding are Colin Saltmere, Hazel Windsor and Kenny Fraser on behalf of the Indjalandji-Dhidhanu People. This proceeding was lodged on 25 July 2019. The applicants to this proceeding made a native title determination application over the land and waters within the bounds of the Rocklands Pastoral Lease (Pastoral Lease 965). 3 There are two other relevant proceedings. 4 The first is proceeding NTD6030/2001, which was filed by Tony Willy and Susan Limmerick, on behalf of the Wakaya Peoples, on 8 May 2001. The applicants to this proceeding made a native title determination application over the land and waters the subject of several future act notices issued under s 29 of the Native Title Act. The application area of this proceeding covers part of the Rocklands Pastoral Lease. That part of the proceeding is referred to as "Part A" of NTD6030/2001. 5 The second is proceeding NTD6016/2002, which was filed by Michael Teague, Renee Samardin and Colin Saltmere, on behalf of the Wakaya Kantupulangu, Wakaya (Draper) Bularnu Alyawarre and Indjilandji Dhidananu Groups, on 3 July 2002. The applicants to this proceeding also made a native title determination application over the land and waters the subject of several future act notices issued under s 29 of the Native Title Act. The application area of this proceeding also covers part of the Rocklands Pastoral Lease. That part of the proceeding is referred to as "Part A" of NTD6016/2002. 6 On 5 August 2022, the Court made an order that proceeding NTD25/2019, Part A of proceeding NTD6030/2001 and Part A of proceeding NTD6016/2002 be dealt with together and called the "Rocklands Pastoral Lease Proceeding". It is this matter that is currently before the Court. 7 The respondents to the Rocklands Pastoral Lease Proceeding are: the Northern Territory is the first respondent; Austcattle Holdings Pty Ltd is the second respondent, Australian Agricultural Company Ltd is the third respondent; North Australia Pastoral Company Pty Ltd is the fourth respondent; Waxahachie Pty Ltd is the fifth respondent; and Telstra Corporation Ltd is the sixth respondent. 8 The parties to the Rocklands Pastoral Lease Proceeding have reached agreement to apply to the Court for the making of a native title determination, and other orders by consent, in respect of land and waters within the area of the Rocklands Pastoral Lease. The orders and determination will resolve NTD25/2019 in its entirety. They will also resolve Part A of NTD6030/2001 and Part A of NTD6016/2002. 9 For the reasons that follow, I consider it appropriate to make a determination of native title, and other orders, as proposed by the parties.

Background 10 The Rocklands Pastoral Lease is located within a broader region where the groups that hold primary rights and speak for country are members of estate groups that make up larger cultural groupings. These primary rights are held at the language group level rather than by estate groups. 11 The claim group comprises persons who are members of the Indjalandji-Dhidhanu language group. They are descended through a cognatic structure from Idaya, including through his son Dijeru; Kaduka (also known as Annie), including through her son Frank Monkhouse; or Georgina Jackson and her partner Burketown Willy, including through their son Tom Fraser. 12 The group observes a common body of traditional laws and customs. These govern how rights and interests in land are acquired and who holds them in particular parts of the claim area. This body of law and custom has its foundation in the Dreaming. The activities of the spiritual ancestors produced the physical and cultural landscape, the legal, social, kinship and religious systems, and the conditions for their continuity. These laws and customs are transmitted to each succeeding generation by the ancestors. 13 In addition to this determination, the Indjalandji-Dhidhanu have been recognised as holding native title rights and interests in a determination of native title made by consent on 18 December 2012 over the territorial extent of Indjalandji-Dhidhanu country in Queensland: Saltmere on behalf of the Indjalandji-Dhidhanu People v State of Queensland [2012] FCA 1423. 14 Negotiations for a consent determination of native title have been progressing for several years. In November 2019, the applicants to NTD25/2019 (the first applicants) provided the Northern Territory with a short-form anthropological report prepared by Dr Philip Clarke, together with an anthropological report and statements of evidence of senior claimants in support of the first applicants' claim to possess a right under traditional law and custom to access resources and to take for any purpose resources of the determination area. The Northern Territory referred the reports to Dr Richard Martin for review. Dr Martin provided his report dated 26 November 2021, and the first applicants and the Northern Territory then exchanged correspondence and further opinions and have now reached agreement on all anthropological issues. In May 2021, the Northern Territory provided the first applicants with an analysis of the extinguishment of native title in the determination area. The parties to the Rocklands Pastoral Lease Proceeding have now agreed on those parts of the determination area in which native title does, and does not, exist, and have agreed in particular that the determination area does not include any public works meeting the description of a road, public or otherwise. 15 Recently, the parties informed the Court that they had agreed on the terms of a proposed consent determination. On 2 September 2022, the parties filed a document titled Applicants' Minute of Proposed Orders and Determination of Native Title over the Rocklands Pastoral Lease by Consent (the Minute of Proposed Orders). The document is signed by or on behalf of all parties to the Rocklands Pastoral Lease Proceeding and dated 2 September 2022. It states that the parties have reached agreement as to the disposition of the proceeding and that the terms of the agreement are that each party consents to the making of orders, and a determination of native title, in the terms of the Minute of Proposed Orders and determination of native title by consent that is set out in the document.

Applicable principles 16 Sections 87 and 87A of the Native Title Act empower the Court to make a determination of native title consistent with a written agreement between the parties to a proceeding without holding a hearing. Section 87 is the relevant provision where the agreement relates to the proceeding, a part of the proceeding, or a matter arising out of the proceeding. Section 87A is relevant where agreement is reached on a proposed determination of native title in relation to an area that is part of, but not all of, the area covered by a proceeding. Both sections are relevant in this case. 17 Section 87 contains three preconditions, which can be summarised as follows: (a) the notice period under s 66 of the Native Title Act has ended; (b) the parties have reached agreement on the terms of orders relating to the whole of the proceeding, a part of the proceeding, or a matter arising out of the proceeding; and (c) the agreement has been reduced to writing, has been signed by or on behalf of the parties, and has been filed with the Court. 18 Section 87A contains four preconditions, which are, in summary: (a) the notice period under s 66 of the Native Title Act has ended; (b) the persons specified in s 87A(1)(c) have reached agreement on a proposed determination of native title in relation to an area that is part of, but not all of, the area covered by the proceeding; (c) the agreement has been reduced to writing, has been signed by or on behalf of the parties, and has been filed with the Court; (d) the Court's Chief Executive Officer has given notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. 19 Where those preconditions are satisfied, the Court has jurisdiction to make the proposed orders or proposed determination of native title. However, before it can do so, the Court must be satisfied of two matters: (a) that the proposed orders or determination is "within the power of the Court"; and (b) that it is "appropriate" to make the proposed orders or determination. 20 Where a statement of agreed facts has been prepared and filed by some, but not all, of the parties to a proceeding, the Court's Chief Executive Officer must give notice of this to the other parties to the proceeding. 21 It is also a requirement that the Court take into account any objections to the proposed determination and to the statement of agreed facts made by other parties to the proceeding. 22 The principles applicable to s 87 were discussed by Mortimer J in Freddie v Northern Territory [2017] FCA 867 at [15]-[24]. Although that discussion related to s 87 (rather than both s 87 and s 87A), I consider the principles there set out to be applicable also to s 87A. I note, in particular, the following passages of her Honour's judgment: 15 In order to be satisfied that the orders sought are within the power of the Court, consideration must be given to other restrictions or requirements in the Native Title Act. For example, the area covered by the orders must not overlap with any other application for determination of native title (s 67(1)); similarly, the area covered by the orders cannot have been the subject of a previously approved determination of native title (s 68). Further, the orders sought will only be within power if they set out the details of the matters required by s 225 (see s 94A) and if they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c)). 16 The Court's function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court: … 17 The Court's function under s 87, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: … 18 The concept of "appropriateness" in s 87(1A) also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State's agreement that there is a credible and rational basis for the determination proposed. … 21 Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties' agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report. … 22 In Brown v Northern Territory of Australia [2015] FCA 1268 at [23], Mansfield J described the task to be undertaken by the Court in the following way: The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. … 24 The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ). 23 As indicated in the above passage, s 94A of the Native Title Act requires an order in which the Court makes a determination of native title to set out details of the matters mentioned in s 225. Section 225, which provides a definition of "determination of native title", is in the following terms: 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.

The material before the Court 24 The following material has been filed in support of the application for the proposed orders and determination: (a) the Minute of Proposed Orders, which has been signed by or on behalf of all parties to the Rocklands Pastoral Lease Proceeding; (b) a statement of joint agreed facts signed by or on behalf of the applicants and the Northern Territory dated 2 September 2022 (the Statement of Agreed Facts); (c) a joint submission of the applicants and the Northern Territory dated 2 September 2022 (the Joint Submission); and (d) an affidavit of Todd Herskope, a solicitor employed by the Northern Land Council, the solicitors for the applicants, affirmed on 26 August 2022.

Consideration 25 I am satisfied that each of the preconditions to the exercise of the powers in ss 87 and 87A are satisfied. 26 In relation to s 87: (a) the notice period under s 66 of the Native Title Act has ended - the application in NTD25/2019 was notified by the Native Title Registrar on 20 November 2019; the period specified in that notice expired on 19 February 2020; (b) the parties have reached agreement on the terms of orders relating to the whole of the proceeding, a part of the proceeding, or a matter arising out of the proceeding - the agreement is set out in the Minute of Proposed Orders; and (c) the agreement has been reduced to writing, has been signed by or on behalf of the parties, and has been filed with the Court. 27 In relation s 87A: (a) the notice period under s 66 of the Native Title Act has ended in respect of NTD6030/2001 and NTD6016/2002; (b) the persons specified in s 87A(1)(c) have reached agreement on a proposed determination of native title in relation to an area that is part of, but not all of, the area covered by the proceeding - each of the persons referred in s 87A(1)(c) is a party to the agreement contained in the Minute of Proposed Orders; (c) the agreement has been reduced to writing, has been signed by or on behalf of the parties, and has been filed with the Court; (d) the Court's Chief Executive Officer has given notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court - in the present case, all parties are party to, and therefore have notice of, the Minute of Proposed Orders. 28 A Registrar on behalf of the Court's Chief Executive Officer has notified the respondents other than the Northern Territory of the filing of the Statement of Agreed Facts. 29 The respondents other than the Northern Territory have confirmed that they do not wish to be heard in relation to the Statement of Agreed Facts. 30 I now consider whether the proposed orders and determination are within the power of the Court. 31 Based on the records of the National Native Title Register kept under Pt 8 of the Native Title Act, I am satisfied that the area covered by the proposed determination does not overlap with any other application for determination of native title and that there is no determination of native title in existence over the area covered by the proposed determination. 32 I am satisfied that each of the matters referred to in s 225(a) to (e) is appropriately articulated in the proposed determination and that the rights and interests described are recognisable by the common law of Australia. 33 I am therefore satisfied that a determination of native title in the terms sought by the parties is within the power of the Court. 34 I now turn to whether it is appropriate to make the proposed orders and determination. 35 I am satisfied that the terms of the proposed determination of native title are clear (as to the claim area, the nature of the native title rights and interests and the manner in which other proprietary interests are affected). In particular, clause 5 of the proposed determination identifies that the native title in the land and waters of the proposed determination area is held by the Indjalandji-Dhidhanu people, and that these persons, together with the Aboriginal people referred to in clause 7, are collectively referred to as the "native title holders". The Indjalandji-Dhidhanu people are further described in clause 6 and referred to in the determination as the "group members". Clause 7 provides that, in accordance with the traditional laws acknowledged and the traditional customs observed by the 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 group members, such people being: members of neighbouring native title holding groups or estate groups; and spouses of the group members. The native title rights and interests are identified in clauses 8 to 12. Clause 13 sets out a non-exhaustive list of activities covered by the native title rights and interests. Clause 14 details other interests in the determination area, and clause 15 defines the relationship between the native title and other interests. 36 The Statement of Agreed Facts provides a probative basis for the making of the proposed determination of native title. The process of preparation of anthropological evidence by the first applicants and the Northern Territory, and the exchange of that expert evidence, is described in paragraphs 8 to 12. The result of that process is that the first applicants and the Northern Territory now agree that connection has been resolved: see paragraph 12. Attachment A to the Statement of Agreed Facts contains a summary of facts that are agreed between the first applicants and the Northern Territory in relation to the connection of the claim group in NTD25/2019 to the proposed determination area. Given the significance of these facts, which I accept, I set out the text of Attachment A in full: Native title holding group 1. In the broader region in which the Rocklands Pastoral Lease is located, the Aboriginal groups that hold primary rights and speak for country will ordinarily be the members of estate groups or clans, being constituent groups within a larger cultural grouping that may be known as a language group (that is, estate groups which share a common language) form, or form part of, a regional cultural bloc, and which observe common traditional laws and customs and derive their rights and interests from those laws and customs. Sometimes, as is the case in relation to the proposed determination over Rocklands Pastoral Lease, primary rights are held at the language group level rather than by estate groups. 2. Under their traditional laws and customs, the members of the Indjalandji-Dhidhanu language group hold primary rights and interests in the proposed determination area. 3. The Indjalandji-Dhidhanu language group is part of a wider regional cultural bloc or society that includes neighbouring Wakaya, Bularnu and Alyawarr language groups. 4. Under the traditional laws and customs of the claimants, where an estate group is depleted, or is in danger of becoming extinct, a number of mechanisms are available under those traditional laws and customs to ensure continuity of knowledge about and responsibility for country. These mechanisms include adoption, incorporation of qualified individuals, activation of more distant genealogical affiliations, the fusion of estate groups or succession to or joint responsibility for neighbouring estates. 5. Under their traditional laws and customs the claimants have adapted to a cognatic structure whereby all descendants of their apical ancestors are eligible to be recognised as members. Social organisation and land tenure 6. The social and cultural organisation of the claimants is underpinned by a doctrine that the land and everything on it is the result of the activities of ancestral beings (dreamings), which bestowed land ownership, and instituted laws and customs, including rules for ritual and social behaviour. Claimants trace their spiritual affiliations to the ancestral beings and the land and sites influenced by them through the four lines of descent described below. 7. In identifying social organisation, four lines of descent are relevant: (a) through father's father (ngawili / wakathua / arrengey); (b) through mother's father (mimi / artatety); (c) through father's mother (mimimo / aperley); and (d) through mother's mother (yabara / iberi / anyany). 8. Generally, kirta (in Wakaya and Indjalandji terminology) or apmerek-artwey (in Alyawarr language) are people who are affiliated with an area through their father's father, and their rights and interests in land are perpetually transmitted along the male line. 9. Generally, kurtungurlu (in Wakaya and Indjalandji terminology) or kwertengerl (in Alyawarr language) are people who are affiliated through their mother's father, and they possess important ceremonial and social duties in relation to their mother's country and additionally have traditional rights in it. 10. However, individuals can be considered as kirta or kurtungurulu through other lines of descent in certain circumstances, particularly where the group is depleted or dispersed. 11. Under their traditional laws and customs, the claimants have adapted to a cognatic structure whereby all descendants of their apical ancestors are eligible to be recognised as members. 12. According to the claimants' traditional laws and customs, different but complementary responsibilities in land are associated with each category. 13. The kirta possess rights such as passing on the ritual and corporate property of their country to their patrilineal descendants, performing as actors in ceremony, and making decisions about access to their country's economic and spiritual resources. 14. The kurtunguluru exercises certain title rights under traditional laws and customs, including painting designs on the kirta, ensuring site protection, and the performance of ceremony in the appropriate manner. 15. The kurtunguluru, along with the kirta, make decisions about and have primary rights in a group's country. 16. In their social organisation, the claimants identify themselves by reference to either the Wakaya and Indjalandji-Dhidhanu subsection system (adopting a combination of Waanyi, Warumungu and Wampaya terminology) or the Alyawarr section system. The Wakaya and Indjalandji-Dhidhanu subsection system separates society into eight named subsections (with male and female terms), four sections and two moieties. The mutually intelligible Alyawarr section system divides society into four named categories: Apetyarr, Kngwarrey, Akemarr and Apwerl. 17. Under the traditional laws and customs, the native title claimants are responsible for the intergenerational transfer of cultural knowledge. Amongst other mechanisms, transmission of knowledge can be facilitated by initiation ceremonies. The claimants' ceremonial practices are continuations of traditional practices that their ancestors followed prior to the acquisition of sovereignty by the British Crown. Senior claimant Colin Saltmere explains: "I learned about my law and country by going through young men's ceremony and other ceremonies... I'm still learning from some of those senior law men..." "They learned about our law through their old people and we are teaching the next generations...". Aboriginal group which 'speaks for country' (primary rights holders) 18. Under their traditional laws and customs, the members of the Indjalandji-Dhidhanu language group possesses primary rights and interests and speak for the proposed determination area. 19. Members of the Indjalandji-Dhidhanu group are descended from Idaya, including through his son Dijeru; Kaduka (also known as Annie), including through her son Frank Monkhouse; or Georgina Jackson and her partner Burketown Willy, including through their son Tom Fraser. 20. The Indjalandji-Dhidhanu group have been recognised as holding native title rights and interests in an approved determination of native title made on 18 December 2012 over the territorial extent of Indjalandji-Dhidhanu country in Queensland (Saltmere on behalf of the Indjalandji-Dhidhanu People v State of Queensland [2012] FCA 1423). Responsibility for and knowledge of Country 21. There are a number of dreamings and sacred sites located in the determination area, including sites recorded under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). Each group has responsibility for specific dreamings and sacred sites that lie along the dreaming paths. It is these dreaming paths and sites that establish a group's primary right to speak for specific areas of country, to exercise a variety of other rights in their country, and to discharge their incumbent responsibilities. Common laws relating to land tenure respectively include: (a) fulfilment of spiritual obligations with regard to the land and waters; (b) the observation of restrictions imposed by gender, age and ritual experience; (c) the observation of restrictions imposed by the presence of Dreamings or sites of significance on the land and waters. 22. The claimants have a detailed knowledge of the natural environment of their country and its natural resources, particularly the areas and sites for which they have spiritual responsibility. 23. Material evidence of physical connections by the ancestors of the claimants exists in their traditional country and is illustrated by the presence of archaeological evidence of both pre-contact and post-contact Aboriginal habitation. Native title rights and interests 24. Under the traditional laws and customs they acknowledge and observe, in relation to areas where the right to exclusive possession has been extinguished, the Indjalandji-Dhidhanu group possesses the rights to: (a) access, remain on and use the area; (b) access and to take for any purpose the resources of the area; and (c) protect places, areas and things of traditional significance. 25. In relation to the area, under the same body of traditional laws and customs, native title rights are also held by members of neighbouring groups and spouses. These are the rights to: (a) access, remain on and use the area; and (b) access the resources of the area. 26. In exercising and enjoying their native title rights and interests in the area where they hold native title, the kinds of activities that native title claimants undertake include, without limit: (a) travelling over, moving about, and accessing the area; (b) living, camping, and erecting shelters and other structures; (c) hunting and fishing; (d) gathering and using the natural resources of the area, such as food, medicinal plants, wild tobacco, stone and resin; (e) taking and using natural water; (f) lighting fires; (g) conducting ceremonies, meetings and other cultural practices; (h) maintaining and protecting sacred sites; and (i) being accompanied and supported in these activities by other Aboriginal people who, under the native title claimants' traditional laws and customs, are permitted or required to be there. 27. Senior claimant Colin Saltmere reflects on the exercise of rights and interests on the proposed determination area with his children: "We go to our country on Rocklands and Austral Downs stations to hunt because the Northern Territory side of our country has the best kangaroo, turkey, and goanna". 28. Aboriginal use of resources is without restriction, however there are certain rules that need to be followed. Colin Saltmere provides an example concerning trade: "I don't need permission to take and use things from Indjalandji-Dhidhanu country. I can take and use them for any reason. I just need to make sure I am not wasteful and that I protect sacred sites and objects". 29. The rights and interests described above have been possessed, and continue to be possessed, under traditional laws acknowledged and traditional customs observed by the claimants since time immemorial, including: (a) at the time when sovereignty was asserted by the Crown of the United Kingdom; and (b) at the time of first contact with non-Aboriginal people. 37 In the Joint Submission, the applicants and the Northern Territory submit that the following matters support the appropriateness of the proposed determination of native title: (a) the parties are legally represented; (b) 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 the applicants; (c) the parties have agreed the nature and extent of other interests in relation to the determination area and those interests are described in the proposed determination; (d) the Northern Territory as first respondent has played an active role in the negotiation of the consent determination; in doing so, the Northern Territory, acting on behalf of the community generally, having had regard to the requirements of the Native Title Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances. 38 In light of the facts agreed in the Statement of Agreed Facts and the above submissions, I am satisfied that the Northern Territory has made a rational decision and is acting in good faith. 39 Having regard to the above, I am satisfied that it is appropriate to make the proposed orders and the proposed determination of native title.

Prescribed body corporate 40 Paragraph 2 of the proposed orders is to the effect that the native title in question is not to be held on trust. Accordingly, there is no need to make a nomination under s 56 of the Native Title Act. However, in these circumstances, s 57(2) of the Act requires certain steps to be taken to determine which prescribed body corporate is to perform the functions prescribed in s 57(3). 41 The agreement signed by the parties seeks a determination that the Indjalandji-Dhidhanu Aboriginal Corporation RNTBC 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 Mr Herskope, in which he deposes that the native title claim group has nominated the Indjalandji-Dhidhanu Aboriginal Corporation RNTBC (ICN: 7791) to be their prescribed body corporate and that, at a meeting held on 25 August 2022, the members of the Indjalandji-Dhidhanu Aboriginal Corporation consented to being so nominated. 42 Accordingly, pursuant to s 57(2)(b), I determine that the Indjalandji-Dhidhanu Aboriginal Corporation is to be the prescribed body corporate to perform the functions prescribed in s 57(3) of the Native Title Act.

Conclusion 43 For these reasons, I will make the orders proposed by the parties and I will make a determination of native title as proposed by the parties. 44 I congratulate the parties for reaching the agreement to achieve this native title consent determination. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.

SCHEDULE OF PARTIES NTD 25 of 2019

NTD 6016 of 2002 (PART A) Applicants in NTD 25 of 2019 Applicant: COLIN SALTMERE Applicant: HAZEL WINDSOR Applicant: KENNY FRASER Applicants in NTD 6030 of 2001 Applicant: TONY WILLY Applicant: SUSAN LIMMERICK Applicants in NTD 6016 of 2002 Applicant: MICHAEL TEAGUE Applicant RENEE SAMARDIN Applicant COLIN SALTMERE Respondents Fourth Respondent: NORTH AUSTRALIA PASTORAL COMPANY PTY LTD Fifth Respondent: WAXAHACHIE PTY LTD Sixth Respondent: TELSTRA CORPORATION LIMITED

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (8)

Cases Cited (6)

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