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[2017] FCA 446
Federal Court of Australia
2017-05-04
Reeves J
Original judgment source is linked above.
A. The Applicant in this proceeding NTD20/2015 has made a native title determination application (the application) that relates to an area of land and waters which is the subject of a proposed determination of native title (the determination). B. The Applicant and the First to Seventh Respondents (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. Pursuant to s 87(1)(a)(i) and s 87(1)(b) of the Native Title Act 1993 (Cth) (the NTA) the parties hereby file with this Court their agreement in writing. D. Pursuant to s 87 and s 94A of the NTA 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. E. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as provided by the determination. F. The parties have requested that the Court hear and 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 s 87 of the NTA and by the consent of the parties:
THE COURT ORDERS THAT:
The Determination Area
The native title holders 4. The persons who hold the common or group rights comprising the native title are the Aboriginal persons who, as ngurraritja for the Determination Area, have a spiritual connection to that area and to the Tjukurrpa associated with it because: (a) it is their country of birth; or (b) they have had a long-term association with the area and possess traditional geographical and religious knowledge of the area; or (c) they have an affiliation to the area through an ancestor with a connection to the area through birth or through long-term association and possession of geographical and religious knowledge of the area and they are recognised by other ngurraritja as having rights and interests in the area under the traditional laws and customs of the Western Desert.
Native title rights and interests 5. The native title rights and interests of the native title holders are the non-exclusive native title rights and interests possessed under and exercisable in accordance with the traditional laws acknowledged and traditional customs observed, being: (a) the right to access and travel over any part of the land and waters; (b) the right to live on the land, and for that purpose, to camp, erect shelters and other structures; (c) the right to hunt, gather and fish on the land and waters; (d) the right to take and use the natural resources of the land and waters; (e) the right to access, take and use natural water on or in the land, except water captured by the holders of Perpetual Pastoral Leases 999, 1055, 1079 and 1146; (f) the right to light fires for domestic purposes, but not for the clearance of vegetation; (g) the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources; (h) the right to access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs; (i) the right to conduct and participate in the following activities on the land and waters: (i) cultural activities; (ii) ceremonies; (iii) meetings; (iv) cultural practices relating to birth and death including burial rites; and (v) teaching the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs; (j) the right to make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders provided that the right does not extend to making any decision that purports to control the access of such persons to the determination area; (k) the right to be accompanied on 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 land and waters; (ii) people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the native title holders; (iii) people required by the native title holders to assist in, observe, or record traditional activities on the areas. (l) the right to conduct activities necessary to give effect to the rights referred to in (a) to (k) hereof. 6. The native title rights and interests referred to in paragraph 5 do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others. 7. The native title rights and interests are subject to and exercisable in accordance with: (a) the valid laws of the Northern Territory of Australia and the Commonwealth of Australia; (b) the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose.
Other rights and interests 8. The nature and extent of the other interests in the Determination Area are: (a) NT Portion 324 - the interest of Colin Bruce Morton under Perpetual Pastoral Lease 1055; (b) NT Portions 325 and 1091 - the interest of Shane Anthony Nicolle and Alethea Jayne Nicolle as trustees of the S & A Family Trust under Perpetual Pastoral Lease 1079; (c) NT Portions 2869, 4007, 4017, 4018 and 4020 - the interest of Umbeara Holdings Pty Ltd under Perpetual Pastoral Lease 999; (d) NT Portion 4471 - the interest of Colin Bruce Morton as trustee of the Morton Family Trust of Victory Downs Station under Perpetual Pastoral Lease 1146; (e) NT Portion 2054 - the interest of the Northern Territory Land Corporation under Crown Lease Perpetual 1119; (f) NT Portion 4975 - the interest of the Northern Territory Land Corporation under Crown Lease Perpetual 1174; (g) NT Portion 3154 - the interest of Telstra Corporation Limited successor to the Australian Telecommunications Commission; (h) the interests of the holders of the following mining and petroleum tenements granted pursuant to the Mineral Titles Act (or its predecessor) and the Petroleum Act respectively: No. Expiry Date Holder EL 27347 3/11/2015 Tri-Star Energy Company EL 27417 13/01/2018 Globe Mineral Resources Investments Pty Ltd EL 27418 13/01/2018 Globe Mineral Resources Investments Pty Ltd EL 27419 13/01/2018 Globe Mineral Resources Investments Pty Ltd EL 28169 26/04/2017 Kronos Gold LLC EL 29714 9/08/2016 Tri-Star Energy Company EL 30041 3/04/2020 Lasico Pty Ltd EMP 31264 20/10/2021 Alice Springs Sand Supply Pty Ltd EP 125 6/12/2019 Ordiv Petroleum Pty Ltd and Santos QNT Pty Ltd EP 134 25/06/2021 Tri-Star Energy Company
(i) the rights and interests of Telstra Corporation Limited (ACN 051 775 556): (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Acts 1989 (Cth), the Telecommunications Act 1991 (Cth) and under Schedule 3 to the Telecommunications Act 1997 (Cth), including rights: A. to inspect land; B. to install and operate telecommunication facilities; and C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities; and (iii) for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and (iv) under any lease, licence, access agreement or easement relating to its tele-communications facilities within the Determination Area. (j) NT Portions 324, 325, 1091, 2869, 4007, 4017, 4018, 4020 and 4471 - the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases identified in s 38(2) to (6) of the Pastoral Land Act 1992 (NT); (k) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (l) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties; (m) the interests of persons to whom valid or validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (ii) conferred by statute.
Relationship between rights and interests 9. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 5 in relation to NT Portions 324, 325, 1091, 2869, 4007, 4017, 4018, 4020 and 4471 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 8, the other rights and interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over, but do not extinguish, the native title rights and interests. 10. In relation to NT Portion 2054 the relationship between the native title rights and interests referred to in paragraph 5 and the interest of the Northern Territory Land Corporation referred to in paragraph 8 is that the lease granted to the Corporation: (a) is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests; (b) the native title continues to exist, but has no effect in relation to the grant; (c) if the grant or its effect is wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; (d) if the grant or its effect is removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent. 11. In relation to NT Portion 4975 the relationship between the native title rights and interests referred to in paragraph 5 and the interest of the Northern Territory Land Corporation referred to in paragraph 8 is that the lease granted to the Corporation: (a) is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests; (b) the native title continues to exist, but has no effect in relation to the grant; (c) if the grant or its effect is wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; (d) if the grant or its effect is removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent. 12. In relation to NT Portion 3154 the relationship between the native title rights and interests referred to in paragraph 5 and the interest of the successor to the Australian Telecommunications Commission referred to in paragraph 8 is that the freehold estate granted to the Commission and held by Telstra Corporation Limited: (a) is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests; (b) the native title continues to exist, but has no effect in relation to the grant; (c) if the grant or its effect is wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; (d) if the grant or its effect is removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent.
Other matters 13. 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)); (c) prescribed substances (as defined in s 5 of the Atomic Energy Act 1953 (Cth) and s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth)). 14. In this determination the term: (a) 'natural resources' means: (i) animals ferae naturae, birds, fish and plants, including timber, wax, resin and gum; and (ii) surface soils, clays, stone, rocks and ochre, but does not include minerals, petroleum and prescribed substances; (b) 'natural waters' includes springs and rockholes. 15. Unless the contrary intention appears, a word or expression used in the NTA has the same meaning in this determination as it has in the NTA.
Schedule A
Native title rights and interests have been wholly extinguished in the following
Public works
INTRODUCTION 1 All too often in recent years, when Judges of this Court, including myself, have been called on to make a determination of native title under the Native Title Act 1993 (Cth) (the NTA), it has been necessary to express grave concerns about the amount of time taken to bring the proceedings in question to finalisation and the tragic fact that, in the meantime, senior members of the claim groups have died without witnessing the recognition of native title in their traditional lands: see, for example, Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 at [7] and Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [32] per Rares J. Periods of 15 years or more are, regrettably, far from uncommon. It is therefore very pleasing to be involved in this native title determination where, as the short history set out below demonstrates, the time taken to bring the proceeding to finalisation is less than two years. In the context of native title proceedings in the Court, this is a remarkably short period of time and it is a great credit to all those involved, including the parties, their legal and other advisers and the Court staff. Hopefully, in years to come, this time frame will come to be regarded as the standard, not as an extraordinary exception. 2 On 19 May 2015, Mr Mick Wikilyiri and a number of other persons, acting as the authorised applicant (the Applicant), filed a native title determination application over various areas of land and waters in Central Australia. Within six weeks of filing the application, the Applicant was able to provide the first respondent, the Northern Territory of Australia, with a short form anthropological report prepared by Dr Natalie Kwok, as well as dreaming and site maps relating to the claim area identified in the application. The Northern Territory reviewed that material and, within a relatively short period, the parties were able to reach agreement on all of the anthropological issues raised by the application. 3 In May 2016, the Northern Territory provided the Applicant with a tenure analysis showing those parts of the claim area where it claimed native title had been extinguished. Again, within a relatively short period of time, the parties were able to reach an agreement with respect to those parts of the claim area in which native title existed, and those parts in which it no longer existed. Earlier this year the parties informed the Court that they had agreed on the terms of a set of proposed consent orders under s 87 of the NTA. On 24 March 2017, the parties filed executed consent orders and the Applicant and the Northern Territory filed a statement of agreed facts, joint submissions and the anthropological report of Dr Kwok. Based on those materials, the parties have now requested the Court to make this consent determination of native title.
THE CLAIM AREA 4 The claim area identified in the application comprises some 10,210 square kilometres of land. It is situated approximately 215 kilometres south of Alice Springs along the Northern Territory-South Australian border and is located in Yankunytjara and Matutjara country within the traditional lands of the Western Desert Society. With the exception of six portions of land, the claim area is covered by four perpetual pastoral leases (PPL). The four PPLs in question are as follows: (a) Umbeara Pastoral Lease (NT Portions 2869, 4007, 4017, 4018 and 4020) (PPL 999); (b) Mount Cavenagh Pastoral Lease (NT Portions 4471) (PPL 1146); (c) Victory Downs Pastoral Lease (NT Portions 324 and 898) (PPL 1055); (d) Mulga Park Pastoral Lease (NT Portions 325 and 1091) (PPL 1079). 5 These four pastoral leases were variously granted under the Pastoral Land Act (NT) and the Crown Lands Act (NT). The earliest grant (PPL 999: see (a) above) had a commencement date of 23 December 1987. While that is approximately 30 years ago, that period is recent history in the context of the native title claimants' relationship with the claim area. However, as is the practice of the Court in dealing with native title claims over pastoral leases in the Northern Territory, this matter has been assigned the short title of "Victory Downs, Mount Cavenagh, Mulga Park and Umbeara": the name of the four pastoral leases mentioned above.
THE NATIVE TITLE CLAIM GROUP AND THE APPLICANT 6 As the report of Dr Kwok records, the native title claim group's system of laws and customs has its foundation in Tjukurrpa, or the "Dreaming/Dreamtime" in English. That is to say, the physical and cultural landscape, the legal, social and kinship systems and the religious beliefs, as well as the conditions for their continuity, were produced by spiritual ancestors who travelled on, above, or below, the lands in the Dreaming. These laws and customs founded in Tjukurrpa are held by the claim group to be unchanged from the time of their creation and to have been transmitted from each succeeding generation by their ancestors. 7 The common body of traditional laws acknowledged, and customs observed, by the native title claim group govern how rights and interests in land are acquired and who holds them in particular parts of the claim area. The group rights comprising the native title are held by ngurraritja in those parts of the claim area with which they have a connection in accordance with the traditional laws and customs of the Western Desert Society. The expression "ngurraritja" is used by the native title claim group to refer to the owners of country. Thus, the native title claim group is comprised of people who are ngurraritja for the country of Warnukula (Mulga Park), Wapirrka (Victory Downs), Watju (Mount Cavenagh), Ananta (Umbeara) and Kalka (Kulgera). 8 In particular, the Applicant is constituted by the following persons who are ngurraritja for the below named parts of the claim area: (a) Mick Wikilyiri (ngurraritja for Warnukula/Mulga Park) (b) Mary Anderson (ngurraritja for Wapirrka/Victory Downs) (c) Donald Grant (ngurraritja for Watju/Mount Cavenagh) (d) Richard Shilling (ngurraritja for Ananta/Umbeara) (e) Stanley Douglas (ngurraritja for Kalka/Kulgera).
THE OTHER PARTIES 9 Aside from the Applicant, the other parties to this proceeding are the Northern Territory of Australia, Mr Colin Bruce Morton, Mr Shane Nicolle and Ms Alethea Nicolle, Umbeara Holdings Pty Ltd, Ordiv Petroleum Pty Ltd, Santos QNT Pty Ltd and Telstra Corporation Ltd.
THE CONDITIONS IN SECTION 87 OF THE NTA 10 Section 87 of the NTA empowers the Court to make an order consistent with the terms of a written agreement between the parties to a native title proceeding without holding a hearing in that proceeding. Before the Court can exercise that power, the procedural conditions specified in s 87(1) must be satisfied. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out five procedural criteria that the parties needed to meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of those criteria and to consider whether they have been met in this matter. 11 The first criterion is that the notice period under s 66 of the NTA must have ended: s 87(1). The Victory Downs, Mount Cavenagh, Mulga Park and Umbeara application was notified by the Native Title Registrar on 9 September 2015. The period specified in that notice expired on 8 December 2015. I am therefore satisfied that this first criterion has been met. 12 The second criterion is that the agreement that has been reached must relate to the whole of the proceeding, or to a part of the proceeding, or to a matter arising out of the proceeding: s 87(1)(a). The executed consent orders filed with the Court show that the agreement relates to the whole of this proceeding. This second criterion has therefore been met. 13 The third criterion is that the agreement that has been reached must be reduced to writing, signed by, or on behalf of, the parties and filed with the Court: s 87(1)(b). As I have already mentioned above, executed consent orders have been filed with the Court. This criterion has also been satisfied. 14 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I observed (at [4]): An order will be within the power of the Court if it is consistent with s 94A of the [NTA], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination. 15 Section 94A of the NTA requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 defines a "determination of native title" 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 and 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. 16 I have examined the consent orders executed by the parties and I am satisfied that each of the matters referred to in s 225(a) to (e) above is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia. 17 Based on the records of the National Native Title Register kept under Pt 8 of the NTA, I am satisfied that there is no determination of native title in existence over the claim area. 18 I am therefore satisfied that a determination of native title in the terms sought by the parties would be within the power of the Court as required by s 87(1)(c). 19 Finally, before the Court makes a native title determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the NTA. In Nelson, I noted (at [7]) that these words: ... have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28]. 20 After canvassing the authorities relevant to this question in Nelson, I identified (at [14]) the following principles: (a) the central issue is whether there exists a free and informed agreement between the parties; (b) in determining whether such an agreement exists, the following factors will be significant: (i) the process followed by the State respondent party, particularly how it goes about assessing the underlying evidence as to the existence of native title; (ii) whether the parties have independent and competent legal representation: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn) at [29], [39] and [40] and Lovett v Victoria [2007] FCA 474 (Lovett) at [39]-[40]; (iii) whether the terms of the proposed consent orders are unambiguous and clear: Munn at [32]; and (iv) whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42]. 21 In their joint submissions, the Applicant and the Northern Territory submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because: (a) the parties were legally represented throughout; (b) the Northern Territory, as the First Respondent, had 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 all parties; (c) the parties have agreed the nature and extent of interests in relation to the determination area and those interests are those described in paragraphs 6 to 11 of the proposed consent orders (s 225(c)); (d) there are no other proceedings before the Court relating to native title determination applications that cover any part of the claim area which would otherwise require orders to be made under s 67(1) of the NTA (ss 87(1) and (2)); (e) the Northern Territory of Australia, as the 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 NTA and having conducted a thorough assessment process, is satisfied that the proposed determination is justified in all the circumstances. 22 Having regard to these joint submissions and my review of the materials filed with the Court, including, in particular, the short form anthropological report of Dr Kwok, I am satisfied that it is appropriate to make the proposed consent orders. 23 As to the principle set out in [20(b)(iii)] above, I have examined the consent orders executed by the parties and I consider that they are unambiguous and clear in their terms.
THE PRESCRIBED BODY CORPORATE 24 Order 2 of the executed consent orders is to the effect that the native title in question is not to be held on trust. Accordingly, there is no need for me to make a nomination under s 56 of the NTA. However, in these circumstances, s 57(2) of the NTA requires certain steps to be taken to determine which prescribed body corporate is to perform the functions prescribed by s 57(3). 25 On this aspect, the consent orders executed by the parties seeks a determination that the Yankunytjara Matutjara Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 57(2) and to perform the functions prescribed by s 57(3). That agreement is supported by an affidavit of Ms Susan Jane Polden, a lawyer employed by the Central Land Council, in which she deposes that, at a meeting of the native title claim group held on 16 October 2013, the Yankunytjara Matutjara Aboriginal Corporation (ICN: 8170) was nominated by the claim group to be their prescribed body corporate and that the members of the Yankunytjara Matutjara Aboriginal Corporation consented to it being so nominated. 26 Accordingly, as required by s 57(2)(b), I determine that the Yankunytjara Matutjara Aboriginal Corporation is to be the prescribed body corporate to perform the functions prescribed by s 57(3) of the NTA.
CONCLUSION 27 One of the central objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this consent determination clearly serve to advance that central object. All the more so where, as I mentioned at the outset of these reasons, this consent determination has been achieved in such a short period of time. It is also worth adding that this consent determination of native title does not create native title in the claim area. Instead, it marks the recognition by the Australian legal system of the native title holding group's long held and pre-existing native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the claim group, since long before it was given the names the Victory Downs, Mount Cavenagh, Mulga Park and Umbeara Pastoral Leases. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
SCHEDULE OF PARTIES NTD 20 of 2015 Respondents Fourth Respondent: UMBEARA HOLDINGS PTY LTD Fifth Respondent: ORDIV PETROLEUM PTY LTD Sixth Respondent: SANTOS QNT PTY LTD Seventh Respondent: TELSTRA CORPORATION LTD
Wikilyiri on behalf of the persons who are ngurraritja for Ananta (Umbeara), Kalka (Kulgera), Watju (Mount Cavenagh), Wapirrka (Victory Downs) and Warnukula (Mulga Park)
Northern Territory of Australia