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[2014] FCA 422
Federal Court of Australia
2014-05-09
White J
Original judgment source is linked above.
THE COURT NOTES THAT: A. The Applicants in this proceeding NTD38/2012 have made an application for the determination of native title ("the application") in respect of an area of land and waters defined in the proposed determination ("the determination"). B. The Applicants and the Northern Territory of Australia ("the parties") have reached agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the application ("the determination area"). The external boundaries of the determination area are described in Schedule A and depicted on the map at Schedule B of the determination. C. The parties have, pursuant to s 87 of the Native Title Act 1993 (Cth) ("the Act") filed their agreement with this Court. D. The terms of the parties' agreement involve the Court making consent orders pursuant to s 87 of the Act determining that native title exists in relation to the determination area as provided by the determination. E. The parties acknowledge that the effect of the making of the determination will be that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the native title holders for the determination area. F. The parties have requested that the Court determine this proceeding in accordance with their agreement. BEING SATISFIED that a determination of native title in the terms set out in the determination in respect of this proceeding would be within power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87 of the Act and by the consent of the parties: THE COURT ORDERS THAT:
Native title rights and interests have been wholly extinguished in the following areas of land and waters: Public works Those parts of the determination area being covered by public works as defined in section 253 of the Act that were constructed or established before 23 December 1996 or commenced to be constructed or established on or before that date (including land and waters within the meaning of section 251D of the Act) including: (a) public roads including rural public roads (50m either side of the centre line), rural arterial roads and national highways; (b) gravel and fill pits established to maintain the roads referred to in (a) above; (c) government bores and associated works; (d) transmission water pipes (adjacent area 5m either side of the centre line); (e) distribution water pipes measuring 150mm diameter or less (adjacent area of 1.5m either side of the centre line) and greater than 150mm diameter (adjacent area 5m either side of the centre line); (f) sewer pipes measuring 150mm diameter or less (adjacent area 1.5m either side of the centre line) and greater than 150mm (adjacent area 5m either side of the centre line); (g) bores, sewer pump stations, and overhead power lines.
IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 38 of 2012
BETWEEN: KENNY TILMOUTH, COLIN BIRD, MARGARET GOLDER, MARTIN MCMILLAN AND DESMOND YOUNG ON BEHALF OF THE MEMBERS OF THE ILKEWARN, ATWEL/ALKWEPETYE AND AYAMPE LANDHOLDING GROUPS
JUDGE: WHITE J DATE: 9 MAY 2014 PLACE: EDWARDS CREEK
REASONS FOR JUDGMENT 1 On 29 November 2012, the applicants applied for a determination of native title under the Native Title Act 1993 (Cth) (NTA) in respect of the area encompassed by the Bushy Park Pastoral Lease and two areas of Crown land to the north of that lease. 2 The parties have now reached agreement on this application and have applied to this Court pursuant to s 87 of the NTA for a determination of native title by consent. 3 For the reasons which follow, I am satisfied that it is appropriate to make the determination. I emphasise at the outset, however, that the Court's orders will not have the effect of granting native title. Instead, they will be a declaration that native title exists, and has always existed, at least since European settlement. 4 The application as filed sought a determination of native title in respect of the Bushy Park Pastoral Lease (NT Portion 687), two areas of Crown land (NT Portions 6152 and 6153) and the area occupied by the Alice Springs-Darwin railway line which intersects the north-western portion of the Bushy Park Pastoral Lease and forms the boundary between NT Portions 6152 and 6153. This is a total area of approximately 2625 km2. Since the filing of the application, a further three parcels of land have been created from land within NT Portions 6152 and 6153. They are NT Portions 6271, 6272 and 6273, and the parties propose that determinations be made with respect to those areas as well. 5 Section 87 of the NTA authorises the Court to make orders by consent on an application for the determination of native title under s 61 of the Act, provided that certain conditions are satisfied. Those conditions are as follows: (a) The period specified in the notice given under s 66 of the NTA has ended (subs (1)); (b) There is agreement between the parties on the terms of an order of the Court in relation to (relevantly) the proceedings (subs (1)(a)); (c) The terms of the agreement are in writing, signed by or on behalf of the parties, and filed with the Court (subs (1)(b)); (d) The Court is satisfied that an order in, or consistent with, the terms proposed by the parties is within its power (subs (1)(c)); (e) The Court is satisfied that it is appropriate to make the order sought. 6 The Court may make a determination by consent under s 87 without holding a hearing (subs (2)) and may accept a statement of facts agreed upon by the applicant and the principal government respondent (subs (10)), in this case the Northern Territory of Australia. 7 For the purposes of this decision, the Court has had regard to the application filed on 29 November 2012, the affidavits of the applicants filed in support of the application, a statement of agreed facts by the applicants and the respondent, and the joint submissions of the parties. 8 The first three of the conditions listed above are of a procedural kind. They have been established in this case. 9 The requirements that the Court be satisfied that the proposed order is within its power and that it is appropriate to make the order are important. That is particularly so having regard to the fact that the recognition given by the orders will bind not just the parties to the present proceedings, but all people in the Australian community: Munn for and on behalf of the Guggari People v Queensland [2001] FCA 1229 at [22]; (2001) 115 FCR 109 at 114. 10 Subject to compliance with the obligations imposed on this Court by the NTA, it is within the power of this Court to make the proposed determination. 11 Section 94A of the NTA requires that the order by which this Court makes a determination of native title set out details of the matters mentioned in s 225 of the NTA. Section 225 provides as follows: 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. 12 The expression "native title rights and interests" used in s 225 is defined in s 223(1) and elaborated in the remaining provisions within s 223. It is sufficient to refer to subs (1) only: (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. 13 The meaning of native title rights and interests in s 223(1) was considered by the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422. 14 In applying ss 94A, 223 and 225, and considering more generally the appropriateness of the orders, the Court is entitled to attach considerable weight to the circumstance that the orders are to be made by consent; that one of the consenting parties is the Northern Territory of Australia; and that government parties such as the Northern Territory have a well-recognised responsibility in assessing applications for determinations of native title. 15 In King v State of South Australia [2011] FCA 1386 at [19]; (2011) 285 ALR 454 at 458, Keane CJ spoke of the Court's reliance on the role of the relevant State or Territory: 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. … 16 Similarly, in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37], North J said: 36 … The [NTA] is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. … 37 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. 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. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. … (Citations omitted) 17 Accordingly, it is not necessary in every case that the Court carry out its own independent assessment of the merits of the claim. The Court may, of course, do so in order to satisfy itself that the State or Territory in question is acting in good faith and appropriately. 18 In the present case, it is apparent that the Northern Territory has exercised the appropriate care and caution before reaching agreement with the applicants. The applicants provided the Territory with a "short-form" anthropological report prepared by Andrew Rayner and Helen Wilmot, both of whom are anthropologists. That anthropological report identified the Aboriginal groups with rights and interests acknowledged and observed in the proposed determination area, identified the nature and extent of those rights, identified the connection of a senior member of each estate group to the proposed determination area by provision of a representative biography of that person, and identified as well the sites and dreaming tracks in the area. 19 Legal officers for the Northern Territory assessed the report of Mr Rayner and Ms Wilmot against agreed criteria, having regard to s 223, and then raised various issues with the applicants. A process of joint assessment and negotiation then occurred. That process led to the applicants conceding that their claim of exclusive native title rights and interests over the Crown land Portions pursuant to s 47B of the NTA should not be pursued and, instead, to accept that the applicant groups had non-exclusive native title rights and interests over those Portions. The applicants have also agreed with the respondent's contentions as to tenure extinguishment in the proposed determination area. 20 As previously noted, s 94A requires this Court's determination to set out details of the matters mentioned in s 225. 21 The proposed determination defines with appropriate particularity the areas in which native title is being recognised (paragraph 1, Schedules A and B). These are NT Portions 687, 5015, 5016, 6152, 6153, 6271, 6272 and 6273. 22 In addition, the proposed determination identifies areas within the determination area in which native title has been wholly extinguished. 23 Paragraphs 4 and 5 of the proposed determination identify with appropriate particularity the groups having native title. The determination area comprises three estate areas associated with the Ilkewarn, Atwel/Alkwepetye and Ayample landholding groups. Essentially, the native title holders are members of one or more of those groups who are descendants, whether biologically or by adoption, through particular parental lines, or who have been accepted as members of one or more of the groups by virtue of their particular connections to an estate. 24 Paragraphs 6 to 9 inclusive of the proposed determination set out with appropriate particularity the nature and extent of the native title rights and interests in the determination area. 25 Next, paragraph 10 of the proposed determination lists the nature and extent of other interests in the determination area. Some nine separate interests are identified, including those of the pastoral lease holders of Bushy Park Station and those of the AustralAsia Railway Corporation. 26 Paragraph 11 of the proposed determination addresses the relationship between the native title rights and interests described in paragraphs 6 to 9 inclusive, and those interests listed in paragraph 10. 27 Sections 55 and 56 of the NTA require that the Court determine whether the native title is to be held on trust and, if so, by whom. Paragraph 2 of the proposed order provides expressly that the native title is not to be held on trust. 28 All parties have had the opportunity to obtain independent legal advice. There is no reason to suppose that a lack of legal representation has caused disadvantage to any party. 29 Finally, I take into account in determining the appropriateness of the orders that the Ilkwarn People and the Atwel/Alkwepetye People have been recognised under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) as the traditional Aboriginal owners of neighbouring land and as native title holders under the NTA.
Conclusion 30 Having regard to all these matters, I am satisfied that it is appropriate to make the proposed determination. Accordingly, there will be orders in the form attached to these reasons. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Tilmouth
Northern Territory of Australia