Samardin on behalf of the Ilperrelhelam, Malarrarr, Nwerrarr, Meyt, Itnwerrengayt and Ampwertety Landholding Groups v Northern Territory of Australia

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 6061 of 2001

BETWEEN: MAVIS SAMARDIN, MICHAEL TEAGUE, KERRY CAMPBELL AND ORS ON BEHALF OF THE MEMBERS OF THE ILPERRELHELAM, MALARRARR, NWERRARR, MEYT, ITNWERRENGAYT AND AMPWERTETY LANDHOLDING GROUPS

HUGHES HOLDING INVESTMENTS NO 1 PTY LTD AS TRUSTEE FOR THE HUGHES DISCRETIONARY TRUST

JUDGE: BESANKO J DATE: 15 AUGUST 2012 PLACE: Alpurrurulum Community

REASONS FOR JUDGMENT 1 This application concerns a Native Title Determination Application filed by the Central Land Council ("CLC") on behalf of the applicants in this court on 11 October 2001 under the Native Title Act 1993 (Cth) ("the Act"). The application relates to an area of land and waters within the bounds of the Georgina Downs Pastoral Lease (Perpetual Pastoral Lease No. 953), Lake Nash Pastoral Lease (Perpetual Pastoral Lease No. 954) and Reserve 1798 declared for quarantine purposes in the Northern Territory ("the Determination Area"). The Determination Area is identified in a map that is Schedule B to the orders I will make. 2 On 19 December 2011, an Amended Application was filed with the Court to correctly reflect the native title claim group and the areas in respect of which native title is claimed ("the Amended Application"). 3 The applicants to the Amended Application are Mavis Samardin, Michael Teague and Kerry Campbell, on behalf of the members of the Ilperrelhelam, Malarrarr, Nwerrarr, Meyt, Itnwerrengayt and Ampwertety landholding groups. The first respondent to the Amended Application is the Northern Territory of Australia and the second respondent is Hughes Holding Investments No.1 Pty Ltd as Trustee for the Hughes Discretionary Trust, as the holder of the Georgina Downs and Lake Nash pastoral leases ("the respondents"). 4 It is important to emphasise that the orders that the Court makes today do not create or confer new rights upon the applicants; rather, the court today recognises the Aboriginal people who form a part of the native title claim group as the traditional owners of the land and waters that fall within the Determination Area. The Preamble to the Act states as a purpose of the Act the fulfilment of the intention of the Australian people to remedy past injustices, which saw the dispossession of the Aboriginal people, the original inhabitants of Australia, of their land. Native title claims brought under the Act are recognised as a way to ensure that Aboriginal people are today able to enjoy fully their rights and interests in traditional lands, in accordance with their laws and customs. 5 The second respondent does not dispute the applicants' native title application, nor the claim of the applicants as to which persons hold the native title rights in the Determination Area. On 1 February 2012, the Solicitor for the Northern Territory advised the first respondent that there was a proper basis for the applicants' application. It was on this basis that, on 9 July 2012, the parties filed with the Court a proposed consent determination, pursuant to s 87 of the Act. The consent determination therefore represents community recognition of the status of those within the native title claim group as the traditional owners of the land in question. In addition to the proposed determination, on 9 July 2012 the parties filed an Agreed Statement of Facts and Joint Submissions in support of the proposed determination.

Section 87 of the Native Title Act 6 Subsection 87(2) of the Act allows the Court to make orders in terms of a consent determination reached by the parties to an application if the Court is satisfied that it is appropriate to do so. 7 Section 87 provides, relevantly: 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 between the parties 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 (b) the terms of the agreement, in writing signed by or on behalf of the parties, 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 Two of the procedural requirements in subsection 87(1) are satisfied. First, it is clear that the notice period prescribed by s 66 of the Act expired on 2 February 2011. Secondly, an agreement has been reached by the consent of all the parties in relation to the whole of the proceeding, the terms of which are in the approved form and have been filed with the Court on 9 July 2012. 9 The principal questions which arise for determination are whether the Court has the power to make the orders contained within the proposed determination, and whether it is appropriate for the Court to do so. While the Court places weight on the joint minutes of the parties, it remains for the Court to decide that the requirements of s 87 of the Act are satisfied. 10 The exercise of the power to make a consent determination under s 87 has been considered in previous decisions. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said (at [36]-[37]): The [Native Title 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 Western Australia (2002) 117 FCR 6; [2002] FCA 660; Ward v 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) 115 FCR 109 ; [2001] FCA 1229. 11 The Court is not required to embark on its own inquiry into the merits of a claim made in an application in order to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider the evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. Reference may also be made to Smith v Western Australia (2000) 104 FCR 494 at [38] where Madgwick J said: State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land. 12 The approach referred to in the preceding two paragraphs has been followed in subsequent decisions of this Court: see, for example, Ellaga v Northern Territory of Australia [2012] FCA 670 at [8]-[9] per Lander J; Lander v South Australia [2012] FCA 427 at [12] per Mansfield J; Roberts on behalf of the Najig and the Guyanggan Nganawirdbird Groups v Northern Territory of Australia (No 3) [2012] FCA 255 at [4]-[5] per Finn J; Wavehill v Northern Territory of Australia [2011] FCA 584 at [9]-[10] per Mansfield J. 13 Other factors that will be relevant to the Court's assessment were considered by Reeves J in Nelson v Northern Territory of Australia (2010) 190 FCR 344. His Honour said at [14]: It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the court include: whether the parties have independent and competent legal representation: Munn at [29], [39] and [40] and Lovett at [39]-[40]; whether the terms of the proposed order are unambiguous and clear: Munn at [32]; and whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Trevor Close (on behalf of the Githabul People) v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42]. 14 In Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62, Black CJ said of the discretion conferred by s 87(1) (at [7]): As I have noted elsewhere, the discretion conferred by s 87(1) must be exercised judicially, and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, may very well vary according to the particular circumstances of each case.

Application of s 87 to the Amended Application 15 It is first necessary to consider whether the terms of the proposed orders are within the power of the Court. The Amended Application has been prepared in accordance with s 61 of the Act and the application is for a determination of native title in relation to an area for which there is no previously approved determination of native title (s 13(1)(a) of the Act). Furthermore, s 94A of the Act requires orders in which a native title determination is made to include certain matters identified in s 225. These matters include the identification of the determination area, the persons or group of persons in whom the native title rights are held and the relationship between the native title and any other rights or interests that arise in relation to the determination area. I am satisfied that the proposed determination complies with these requirements, and that the orders are within the power of the Court. 16 Secondly, in my opinion, it is appropriate for the Court to make the orders sought. In coming to this conclusion, I have taken the following matters into account: 1. the parties are legally represented; 2. the Northern Territory as first respondent obtained searches of land tenure and mining and other relevant interests to determine the extent of any "other interests" within the Determination Area. 3. the parties have agreed the nature and extent of interests in relation to the Determination Area and those interest are described in paragraph 10 and Schedule C to the orders (s 225(c)); 4. 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 (subs. 87(1) and (2)); 5. 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 circumstances. 17 In relation to this assessment process, a Statement of Agreed Facts prepared by the parties in support of the proposed consent determination and filed with the Court on 9 July 2012 notes the following material and steps as having been relevant to the assessment process: 1. On 20 December 2010, the applicants served on the first respondent an anthropology report, prepared by Mr Jitendra Kumarage, dated 17 December 2010, native title holder genealogies, a sites and dreaming map as well as file notes concerning connection from five claimants for review by a consultant anthropologist; 2. The connection material was considered by both the first and second respondents. The first respondent sought advice about the connection material from consultant anthropologist Emeritus Professor Basil Sansom, who identified several issues in relation to the material. 3. On 19 July 2011, a conference of experts was convened, at the request of the applicant and the first respondent, to identify areas of agreement between Professor Sansom and Mr Kumarage. At the conclusion of the conference, the experts, the District Registrar of the Federal Court (SA & NT) and the Deputy Registrar of the Federal Court signed a report wherein the agreement reached concerning the connection material was identified. 18 By virtue of the parties' agreement, it is common ground that the members of the landholding groups have a traditional and continuing spiritual, physical and cultural connection to the land within the Determination Area. It is also clear the agreement between the parties has been entered into freely and rationally. The first respondent has engaged with the expert anthropological material and has been advised by the Solicitor for the Northern Territory that this material discloses a reasonable basis upon which to enter into the consent determination. The terms of the proposed orders are unambiguous and appear appropriate in the circumstances: see Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [8] per Black CJ. I note that the parties have not seen it as necessary to expressly limit the rights expressed in paragraph 6 of the proposed orders to use for personal or communal needs, the parties being of the understanding that such limitation was inherent in the context in which the orders are made. For these reasons, I am satisfied that it is appropriate for the Court to make the orders sought. 19 Finally, I would note that the proposed orders provide that the native title is not to be held on trust, for the purposes of s 56 of the Act. Rather, the proposed orders provide for the Ilperrelhelam Aboriginal Corporation to be the prescribed body corporate for the purposes of subs. 57(2) and (3) of the Act.

Conclusion 20 Before making the orders sought, two matters should be mentioned. First, the parties have been able to reach a settlement in this matter without the need for litigation and, having done so, have been able to fulfil one of the aims of the Act; the parties should be congratulated for their efforts. Secondly, it should be noted that the orders which follow do not grant native title to the Ilperrelhelam, Malarrarr, Nwerrarr, Meyt, Itnwerrengayt and Ampwertety peoples, but instead recognise what they have long held as the indigenous inhabitants of this nation. 21 Pursuant to s 87 of the Act, I make the orders and the determination which have been agreed between the parties and which are contained in the Minute filed with the Court and signed by them. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.