BLACK CJ
1 The Court sits today at Parntirrpi Outstation in the Central Ranges to consider an application for a determination of native title made on behalf of the Peoples of the Ngaanyatjarra Lands.
2 The substance of the reasons for judgment that I am about to deliver will be translated simultaneously into the Language of the Peoples of the Ngaanyatjarra Lands, some hundreds of whom have come to Parntirrpi Outstation to attend this hearing. The Court is very grateful to Mr Ward, a senior member of the Peoples, for acting as interpreter for Counsel and for the Court.
3 The area for which the determination is sought covers some 187,000 square kilometres of land and waters in the State of Western Australia. It extends west from the border between Western Australia, South Australia and the Northern Territory. The area includes reserves and special leases granted for the use and benefit of Aboriginal people. It also includes the Gibson Desert Nature Reserve and the Warburton Range Stock Route.
4 The proceeding was commenced by the Ngaanyatjarra Lands Application (the Application), which was filed in the Federal Court of Australia in Perth on 23 April 2004. The parties to that application have now reached an agreement about the terms of an order of the Federal Court of Australia determining native title, and they now ask the Court to make an order in the terms that they have agreed, and to do so without holding a further hearing.
5 Some 2,700 men and women are named in a schedule to the proposed order as those who, with their descendants, are the Peoples of the Ngaanyatjarra Lands.
6 For the reasons that follow, I am satisfied that the Court can, and should, make an order in the terms the parties seek.
7 I should, however, first explain that the same area is the subject of six separate applications for the recognition of native title: WAD 6030 of 1998, WAD 6041 of 1998, WAD 6101 of 1998, WAD 6103 of 1998, WAD 6109 of 1998 and WAD 6111 of 1998. The present application, the Ngaanyatjarra Lands Application, was brought so that instead of there being six applications, there should be just one application for the whole area. The orders that the Court is now asked to make provide for the discontinuance of five of the six applications. The other application, WAD 6103 of 1998, is to remain current because part of its claim area is not covered by the Ngaanyatjarra Lands Application.
8 Section 87 of the Native Title Act 1993 (Cth) (the Act) provides that if the parties reach agreement on the terms of an order of the Federal Court, the Court may "if it appears to it to be appropriate to do so" make an order in those terms without holding a hearing. There are, however, preconditions: the terms of the agreement, in writing, signed by or on behalf of the parties, must first be filed with the Court, and the Court must be satisfied that the order in those terms would be within the power of the Court.
9 The terms of the agreement between the parties are in writing, the agreement is signed by or on behalf of the parties and the agreement is filed with the Court. There can be no doubt about the jurisdiction of the Court to make the order sought (see s 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded. Specifically, the requirements of s 94A of the Act are satisfied because the proposed order sets out details of each of the matters mentioned in s 225.
10 It therefore remains only to consider whether it would be "appropriate" to make the orders sought.
11 The discretion conferred by s 87(1) must of course 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.
12 In the present case, it is clear that the parties have had independent and competent legal advice and there is no suggestion that the agreement was not freely entered into. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances.
13 The Court has been much assisted in understanding the connection of the native title claimant group with their land by the commendably clear and comprehensive way in which the claimant application has been prepared. The uncontested statements in the Application give the Court some understanding of the laws and customs of the Peoples of the Ngaanyatjarra Lands. The application sets out the various matters required by s 62 of the Act, including a general description of the native title rights and interests claimed and the factual basis upon which it is said that the claim group, and their predecessors, had an association with the area. It outlines the basis for the claim that there existed traditional laws and customs that give rise to native title and that the claim group has continued to hold the native title in accordance with those traditional laws and customs. It explains, in outline, but sufficiently for present purposes, the basis of the claim of association with the area. It explains also that the fundamental concept in the belief system of the people of the Western Desert is that of the Tjukkurrpa and it explains in broad outline how that concept relates to the traditional laws and customs that are the foundation of the claim.
14 The traditional laws acknowledged, and the customs observed, by the people, encompass all aspects of their lives, as they have done since they first came to these vast lands long, long ago. It is a connection that can be traced so deep into the lives of the Peoples of the Ngaanyatjarra Lands that it involves spiritual, physical, historical, legal (that is to say, customary legal), economic and social elements. The Application tells, for example, of how the Peoples of the Ngaanyatjarra Lands spiritual connection to their Country can be found in the collective belief that the Tjukurrpa are responsible for the existence and form of the land itself.
15 In the distant past, dreaming beings travelled vast distances across the desert and through the Ngaanyatjarra Lands, creating the waterholes and landscape features and laying down the songs and dances for the people to perform. They include the dance and song, performed last night at the place where the court sits today, about the emu and the turkey, who met up at a place called Yankal-Tjungku to the north of here, and continued on. The Ngaanyatjarra Lands are characterised by the number and richness of these great travelling stories of creation, which still form the backbone of the people's culture and way of life.
16 In these circumstances I am quite satisfied that it would be appropriate to make an order in the terms agreed between the parties.
17 It is always a cause for great satisfaction when native title claims are settled by agreement rather than through litigation. As I said in Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717, at para 1:
"Courts have always encouraged parties to settle their claims amicably. Agreement is especially desirable in native title cases due to the importance, complexity and sensitivity of the issues involved. Agreement between the parties minimises cost and distress and establishes goodwill between the parties for future dealings: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595."
18 In this case the efforts of all the parties and their representatives are especially noteworthy. As I have said, the present single application takes the place of six individual claims and the parties have gone ahead with commendable speed to achieve an agreement within little more than a year after the filing of this application.
19 Finally, I should emphasise to all present that the order that the Court will now make determines, under the laws of Australia, that native title exists, as it always has, according to the traditional laws and customs of the Peoples of the Ngaanyatjarra Lands, and that the title is held by those Peoples. The order does not grant native title to the Peoples of the Ngaanyatjarra Lands; it recognises what they have long held.