FEDERAL COURT OF AUSTRALIA

Bloomfield on behalf of the members of the Akerte, Atwele, Irrerlerre, Ulpmerre and Warrtharre Landholding Groups v Northern Territory of Australia [2017] FCA 335

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding NTD61/2015 has made a native title determination application (the application) under s 61(1) of the Native Title Act 1993 (Cth) (the Act) 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, the Northern Territory of Australia, the pastoralist and Australian Abrasive Minerals Pty Ltd (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 Sch B and depicted on the map at Attachment A of Sch C of the determination.

C.    Pursuant to s 87(1)(a)(i) and s 87(1)(b) of the Act the parties hereby file with this Court their agreement in writing .

D.    Pursuant to s 87 and s 94A of the Act 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.

THE COURT 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 Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in terms of the determination set out below.

2.    The native title is not to be held on trust.

3.    Tywele Aboriginal Corporation (ICN:8558) is:

(a)    to be the prescribed body corporate for the purposes of s 57(2) of the Act;

(b)    to perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.

4.    The parties have liberty to apply to establish the precise location and boundaries of any public works and adjacent land and waters identified or otherwise referred to in Sch C of the determination.

5.    There be no order as to costs.

DETERMINATION:

The Determination Area

1.    The Determination Area comprises NT Portions 2453, 3676, 5136 and 7578 being the land and waters more particularly described in Sch A and depicted on the map comprising Sch B.

2.    Native title exists in the Determination Area.

3.    Native title does not exist in those parts of the Determination Area described in Sch C.

The native title holders

4.    The Determination Area comprises five estate areas associated with the Akerte, Atwele , Irrerlerre, Ulpmerre and Warrtharre landholding groups (the landholding groups) respectively.

5.    The persons who hold the common or group rights comprising the native title are the Aboriginal persons who are:

(a)    members of one or more of the landholding groups referred to in paragraph 4 by virtue of descent (including adoption) through father's father, father's mother, mother's father and mother's mother;

(b)    accepted as members of one or more of the landholding groups referred to in paragraph 4 by senior members of a landholding group, referred to in subparagraph (a), by virtue of the following non-descent connections to an estate:

(i)    spiritual identification with and responsibility for an estate;

(ii)    conception and/or birthplace affiliation with an estate;

(iii)    long-term residence in an estate;

(iv)    close kinship ties, including intermarriage;

(v)    shared section/subsection and/or moiety affiliation ;

(vi)    a more distant ancestral connection to an estate, for example, mother's father's mother;

(vii)    possession of secular knowledge of an estate;

(viii)    possession of traditional religious knowledge, authority and responsibility for an estate;

(ix)    authority and responsibility for shared Dreaming tracks and/or places of significance connected with an estate;

(x)    seniority in traditional matters concerning the claim group and/or the estate.

Native title rights and interests

6.    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 Lease No. 989;

(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.

7.    The native title rights and interests referred to in paragraph 6 do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others.

8.    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

9.    The nature and extent of the other interests in the Determination Area are:

(a)    NT Portions 2453, 3676, 5136 and 7578 – the interest of Steven Phillip Cadzow as trustee of the Steven Cadzow Family Trust No 1 of Mt Riddock Station under Perpetual Pastoral Lease No. 989;

(b)    the interests of the holders of the following mining and petroleum tenements granted pursuant to the Mineral Titles Act 2010 (NT) (or its predecessor) and the Petroleum Act 1984 (NT) respectively:

(c)    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 Act 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 telecommunications facilities within the Determination Area.

(d)    NT Portions 2453, 3676, 5136 and 7578 - 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 section 38(2) to (6) of the Pastoral Land Act 1992 (NT);

(e)    the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

(f)    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;

(g)    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

10.    To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 9, 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.

Other matters

11.    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)).

12.    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.

13.    Unless the contrary intention appears, a word or expression used in the Act has the same meaning in this determination as it has in the Act.

Schedule A

1.    The Determination Area comprises NT Portions 2453, 3676, 5136 and 7578 comprising an area of 2,754 square kilometres held under Perpetual Pastoral Lease No. 989.

2.    The following areas within the external boundaries of NT Portion 2453 are not included in the Determination Area:

(a)    NT Portion 2431;

(b)    NT Portion 3371;

(c)    NT Portion 3400;

(d)    NT Portion 3401;

(e)    NT Portion 4166;

(f)    NT Portion 4167;

(g)    Town of Hart Range;

(h)    The following roads constructed by or on behalf of the Northern Territory as public roads:

(i)    a road 100 metres wide (Plenty Highway) which traverses NT Portion 2453 and 3673 from the boundary with Alkwert Aboriginal Land Trust (NT Portion 4029) to the boundary of Huckitta Station (NT Portion 2454);

(ii)    a road 100 metres wide (Aranpunya Road) which traverses NT Portions 2453 and 7578 from the Plenty Highway to the boundary of Dneiper Station (NT Portion 742);

(iii)    a road 100 metres wide which traverses NT Portion 2453 from the boundary with NT Portion 7578 to the boundary of Delny Station (NT Portion 756) and MacDonald Downs Station (NT Portion 3120) respectively.

Schedule B

Map of Determination Area

Schedule C

Areas where native title does not exist

Native title rights and interests have been wholly extinguished in the following areas of land and waters.

Public works

1.    Those parts of the Determination Area 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, namely, rural public roads (50m either side of the centre line), rural arterial roads and national highways and associated road infrastructure;

(b)    community, pastoral access and other roads (including access roads and tracks to public works referred to in this clause) which are not otherwise public roads;

(c)    gravel and fill pits established to maintain the roads referred to in (a) and (b) above;

(d)    government bores and associated works;

(e)    river and rain gauges;

(f)    transmission water pipes (adjacent area 5 metres either side of the centreline);

(g)    distribution water pipes measuring 150mm diameter or less (adjacent area of 1.5 metres either side of the centreline) and greater than 150mm diameter (adjacent area 5 metres either side of the centreline);

(h)    sewer pipes measuring 150mm diameter or less (adjacent area 1.5 metres either side of the centreline) and greater than 150mm diameter (adjacent area 5 metres either side of the centreline);

(i)    bores, sewer pump stations and overhead power lines.

2.    In addition to the areas referred to in paragraph 1 above native title has been wholly extinguished over that part of NT Portion 2453 covered by:

(a)    the Old Harts Range Police Station (including land and waters within the meaning of section 251D of the NTA); and

(b)    a road 20 metres wide (Harts Range access road) which traverses NT Portion 2453 from the Plenty Highway to the boundary of Alkwert ALT (NT Portion 4029) - en route to NT Portion 1503 within NT Portion 4029.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Today, the Court will make orders by consent which recognise that the Akerte, Atwele, Irrerlerre, Ulpmerre and Warrtharre landholding groups have, and always have had, native title rights and interests in land within the area the subject of the application.

2    It is desirable to say something first about the Native Title Act (1993) (Cth) (the Act). As Jagot J noted in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604, the Act takes a relatively rare form. In particular, the Preamble to the Act leaves little or no doubt as to why the Act was enacted and the objectives it was intended to achieve. Relevant parts of the Preamble include as follows:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

…

The people of Australia intend:

(a)    to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)    to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

…

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

3    As her Honour further noted, the Act is significant because it creates a special procedure for the just and proper ascertainment of native title rights and interests so as to ensure that, wherever possible, those rights and interests be established by conciliation rather than by contested, lengthy and expensive litigation.

4    I pay tribute to the parties in this proceeding for having finalised proposed orders by consent. They have managed to arrive at a common position in less than eighteen months since the application lodged, which is a tribute to their good faith and common sense.

5    It is appropriate to now set out some uncontroversial background matters.

Summary of background matters

6    On 23 September 2015 the applicant filed in the Federal Court of Australia a native title determination application over various areas of land and waters (the application). The area subject to claim in the application, which is in Eastern Arrente territory, was:

(a)    Mt Riddock Pastoral Lease (NT Portions 2453 and 3676) (Perpetual Pastoral lease (PPL) 989);

(b)    part of the Jervois Stock Route (part of NT Portion 4265); and

(c)    Reserve 1776 (Stock Route and Travelling Stock purposes) (NT Portion 5136).

7    The Native Title Registrar gave notice of the application under section 66 of the Act. The notification period ended on 30 December 2015.

8    The native title claim group on whose behalf the application was made is comprised of the persons described in Sch A of the application.

9    The application area is in the Mt Riddock locality of the central region of the Northern Territory and is more particularly described in Schedule B of the application and depicted on a map in Attachment A to Sch C of the application (Determination Area).

10    On 22 August 2016, the Registrar-General of Land Titles registered a Miscellaneous Application incorporating part of former NT Portion 4265 into PPL 989. That part of former NT Portion 4265 which was subject to the application was allocated a new parcel number, namely NT Portion 7578.

11    The native title rights and interests claimed in relation to the Determination Area are identified in Sch E of the application. The factual basis on which those rights and interests are asserted is set out in Sch F of the application.

12    The applicant and the first respondent agreed to resolve this application on the basis of a "short-form" approach to the provision of:

(a)    anthropological evidence in support of the native title claim group’s connection to the Determination Area; and

(b)    evidence of the construction or establishment of public works in the Determination Area.

The Assessment Process: the native title claim group's connection to the Determination Area

13    On 8 February 2016, the applicant provided the first respondent with its anthropological report and dreaming and sites map by Mr Craig Elliot and Ms Rebecca Koser (the Anthropological Report). This was reviewed by the first respondent. In response to comments made by the first respondent, the applicant provided the first respondent with a Revised Anthropological Report of Mr Craig Elliot and Ms Rebecca Koser dated 4 October 2016 (the Revised Anthropological Report). This was also reviewed by the first respondent. The parties reached agreement regarding all outstanding anthropological issues.

14    The Anthropological Report and the Revised Anthropological Report included a declaration pursuant to Federal Court Practice Note CM7 regarding the completeness of the enquiries made in relation to the preparation of the reports.

15    The Anthropological Report and the Revised Anthropological Report and other materials were assessed by a legal officer for the first respondent and assessed against criteria agreed by the parties as satisfying the requirements of s 223 of the Act.

16    The applicant and the first respondent reached agreement that the native title claim group described in Sch A of the application, in the Anthropological Report and in the Revised Anthropological Report is comprised of persons who hold non-exclusive native title rights and interests in the Determination Area within the meaning of s 223(1) of the Act.

The Assessment Process: tenure and public works

17    On 9 June 2016, the first respondent provided to the applicant a letter attaching the "Tenure and Public Works Extinguishment Table" which contained an analysis of the extinguishment of native title in the Determination Area based upon the grant of tenure and public works.

18    On 26 July 2017 the applicant provided the first respondent with the applicant's reply to the first respondent's Extinguishment Contentions. The first respondent and the applicant subsequently exchanged further correspondence in relation to various land tenure and public works issues.

19    Ultimately, the applicant and first respondent reached agreement as to those parts of the Determination Area in which native title does and does not exist.

20    The Commonwealth of Australia and applicant exchanged correspondence regarding the Department of Defence's interest in the Harts Range access road. The applicant and the Commonwealth of Australia reached agreement as to the extinguishing effect of the Harts Range access road as a public work. On 1 March 2017, the Commonwealth of Australia withdrew from the proceeding.

21    The applicant and the first respondent have agreed to a list of commonly occurring Government constructed public works within the Determination Area which were constructed or established or commenced to be constructed or established on or before 23 December 1996 and that wholly extinguish native title (including over adjacent land or waters as defined in s 251D of the Act). Those lists are included in paragraph 1 of Sch C of the Minute of Proposed Orders and Determination of Native Title by consent for the Mt Riddock Native Title Determination Application dated 3 March 2017 which has been signed by all the parties, including the second and third respondents.

Why it is appropriate for the Court to make the orders sought

22    The Court is asked to make orders under s 87 of the Act in accordance with the agreed terms of the parties.

23    In support of this application, the following documents have been filed:

(a)    Minute of Proposed Orders and Determination of Native Title;

(b)    Statement of Joint Agreed Facts by the applicant and the Northern Territory; and

(c)    Joint Submissions of the applicant and the Northern Territory.

24    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(1A) and (2)).

25    In addition, the Court must have regard to the following matters:

(a)    whether all parties likely to be affected by an order have had independent and competent legal representation;

(b)    whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the state in which the land is situated; and

(c)    whether all the requirements of the Act have been complied with.

26    The focus of the Court in considering whether the orders sought are appropriate under ss 87(1A) 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, in passages which are frequently cited, North J stated at [36] and [37] that:

The Act [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 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.

27    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 can consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally, which essentially involves the State satisfying itself that there is a credible basis for the application: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J and Yaegl People #1 v Attorney-General of New South Wales [2015] FCA 647 at [9] per Jagot J.

The application of s 87 to the application

28    I find that the requirements of s 87 of the Act are satisfied in the present case. In particular:

(a)    the period specified in the notice given under s 66 ended on 30 December 2015 (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 (ss13(1)(a));

(iii)    the Minute complies with ss 94A and 225 of the Act (s 87 (1)(c));

(e)    it is appropriate that the Court make the orders sought because:

(i)    the 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 provided copies of those searches to all parties;

(iii)    the parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in paragraphs 6 to 11 of the Minute (s 225(c));

(iv)    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));

(v)    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 an appropriate assessment process, is satisfied that the determination is justified in all the circumstances.

29    The Court will now make orders in accordance with the proposed consent determination.

Associate:

Dated:    6 April 2017