Wavehill v Northern Territory of Australia

BETWEEN: JIMMY WAVEHILL ON BEHALF OF THE NGAPURRPINKAKUJARRA GROUP, THE NARRWAN GROUP, THE WALANYIPIRRI GROUP, THE YINGAWUNARRI GROUP, THE NARLWAN GROUP

JUDGE: MANSFIELD J DATE: 2 June 2011 PLACE: PIGEON HOLE

Introduction 1 The application the subject of this proceeding is for a determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the Dungowan Pastoral Lease (Perpetual Pastoral Lease 1076) in the Northern Territory. 2 The application is one of six applications being heard together, because they are geographically proximate. They are all in the north western region of the Northern Territory, but over 600 km south of Darwin. They are to the west of the Newcastle Waters Station, which itself is just west of the Stuart Highway, and to the east of the Gregory National Park. They are about half-way along a diagonal line between Timber Creek on the Victoria Highway and Elliott on the Stuart Highway. There has been a determination of native title in relation to the Newcastle Waters Station, after an extended hearing: King v Northern Territory (2007) 162 FCR 89. 3 One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That has been facilitated by the amendments to s 87 by the Native Title Amendment Act 2009 (Cth). It is very appropriate, therefore, that this application and the related applications have resulted in the parties agreeing to the terms of orders to be made by consent pursuant to s 87 of the Act. 4 The Dungowan Pastoral Lease, the area over which the proposed consent determination will be granted, is an area of about 4454 km2. It is described in more detail in Schedule A and in the map which is Schedule B to the Determination. The other areas over which the related determinations are to be made also encompass areas of particular pastoral leases. They are: the application of Billy Campbell (on behalf of the Ngapurrpinkakujarra Group, the Narrwan Group, the Walanyipirri Group, the Yingawunarri Group, the Purruruka Group, the Yilyilyimarri Group, the Japuwuny-Winija Group, the Bilnara Group, the Sampana Group) over the area of the Camfield Pastoral Lease, covering an area of some 2769 km2; the application of George King (on behalf of the Ngapurrpinkakujarra Group, the Yingawunarri Group, the Purrurruka Group) over the area of the Montejinni East Pastoral Lease, covering an area of some 1598 km2; the application of Alan Young (on behalf of the Nirrina Group, the Yingawunarri Group, the Purrurruka Group, the Yilyilimarri Group, the Billinara Group) over the area of the Montejinni West Pastoral Lease, covering an area of some 1495 km2; the application of Jimmy Wavehill (on behalf of the Ngapurrpinkakujarra Group, the Yingawunari Group, the Narlwan Group, the Luwaja Group, the Tururrutpa Group, the Beregumayin-Ngarrajanaggu Group) over the area of the Birrimba Pastoral Lease, covering an area of some 2595 km2; the application of Alan Young (on behalf of the Ngapurrpinkakujarra Group, the Yingwunarri Group, the Liwi Group, the Luwaja Group, the Nirrina Group, the Beregumayin-Ngarrajanaggu Group) over the area of the Killarney Pastoral Lease, covering an area of some 2819 km2. 5 The total area encompassed by the six determinations is in excess of 15,730 km2, a very considerable area. 6 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications were and are the traditional owners of that land. By the Court's orders, the Australian community collectively recognises that status. It is important to emphasise that the Court's orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement. 7 The Applicant has filed the following documents which have been signed by the parties: (a) Proposed Orders and Determination of Native Title by Consent dated 13 May 2011 (the Minute); (b) Statement of Joint Agreed Facts of the Applicant and the First and Second Respondents in Support of the Minute of Proposed Orders and Determination of Native Title over the Dungowan Pastoral Lease by Consent dated 13 May 2011; and (c) Joint Submission of the Applicant and the First and Second Respondents in Support of the Minute.

B. Section 87 of the Act 8 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) the period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) there is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) the terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87 (1)(b)); (d) the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87 (1)(c)); and (e) the Court considers that it would be appropriate to make the order sought (ss 87(1) and (2)). 9 The focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36] to [37] that: The Act is designed to encourage parties to take responsibility for resolving proceeding 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) 115 FCR 109; [2001] FCA 1229. 10 Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application 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 that 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. See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J: 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.

C. The application of s 87 to the Application 11 The requirements of s 87 of the Act have been satisfied in the present case. In particular: (a) the period specified in the notice given under s 66 ended on 2 February 2011 (s 87(1)); (b) the parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i)); (c) the parties have recorded their agreement in the Minute (s 87 (1)(b)); (d) an order in terms of or consistent with the Minute would be within the Court's power because: (i) the Application is valid and was made in accordance with s 61 of the Act; (ii) 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)); (iii) the Minute complies with ss 94A and 225 of the Act (s 87 (1)(c)); and (e) it is appropriate that the Court make the orders sought because: (i) all parties are legally represented; (ii) 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 provide copies of those searches to all parties; (iii) the Second Respondent, the holder of Perpetual Pastoral Lease 1076, provided all parties with a list of pastoral improvements on Perpetual Pastoral Lease 1076 which affect native title; (iv) the parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in Order 10 and Schedules C, D and E of the Determination (s 225(c)); (v) 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)); (vi) 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 Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances. 12 That assessment process has included the production and assessment of extensive material to show the connection of the claim group with the country covered by the Dungowan Pastoral Lease. That material included that prepared by Jeff Stead, anthropologist engaged on behalf of the Applicant and addressed the Northern Territory's Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009. It was then considered by the First and Second respondents. The First Respondent sought advice about that material from another anthropologist, Basil Sansom. The First and Second Respondents raised various matters about that material with the Applicant and subsequently addressed those matters. Ultimately, the parties reached agreement that the native title claim group named in Schedule A of the application and in the connection material are the persons who hold the claimed native title rights and interests in the determination area. That primary material has been filed. In my view, it clearly justifies the approach taken by the First and Second Respondents. 13 Accordingly, it is appropriate to make the proposed orders which recognise: (1) that the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs; and (2) that the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and (3) that the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs; and (4) that the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land. 14 There is one aspect of the proposed determination upon which it is necessary to comment. Section 55 of the Act requires the Court, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by ss 56 and 57 of the Act. They respectively relate to holding the native title on trust and with the non-trust functions of prescribed bodies corporate. The proposed determination provides that the native title is not to be held on trust. It provides for an Aboriginal corporation to be nominated to the Court within 12 months or such further time as the Court may allow to be the prescribed body corporate for the purposes of s 57(2) and to perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate. The Court, of course, must act in accordance with s 55, so it anticipates that those steps will be taken following the Determination in a timely manner and certainly within the 12 month period specified. There would need to be persuasive reasons why the Court should allow further time having regard to the terms of s 55. 15 For the reasons given, the Determination is now made. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.