FEDERAL COURT OF AUSTRALIA

Patta Warumungu People v Northern Territory of Australia [2007] FCA 1386

NATIVE TITLE – determination of native title by consent

Native Title Act 1993 (Cth) s 61(1)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Members of the Yorta Yorta Aboriginal Community v Victoria(2002) 214 CLR 422

Munn v Queensland (2001) 115 FCR 109

EVELYN CRAFTER NAPPANGARTI, BRIAN CRAFTER JANGALI, GAYE FOSTER NAPALJARRI AND JEREMY DAWSON JUPPURULA ON BEHALF OF THE PATTA WARUMUNGU PEOPLE v NORTHERN TERRITORY OF AUSTRALIA

NTD 8 OF 2006

MANSFIELD J

3 SEPTEMBER 2007

TENNANT CREEK

THE COURT ORDERS BY CONSENT THAT:

1.                  There be a determination of native title in the terms set out below (‘the determination’), the determination to take effect immediately upon the making of these Orders.

2.                  Upon the determination taking effect, native title is held by the persons referred to in paragraph 4 of the determination.

3.                  Patta Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth) (‘the Act’) and perform the functions mentioned in s 57(3) of the Act after becoming a registered native title body corporate.

4.                  There be no order as to costs.

AND THE COURT DECLARES THAT:

5.                  The application NTD 8 of 2006 is finalised, within the meaning of s 190(4) of the Act, in respect of the land and waters the subject of the determination.

DETERMINATION

BEING SATISFIED that a determination in the terms sought by the parties would be within the power of the Court, and it appearing to the Court appropriate to do so and by the consent of the parties:

THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT:

Definitions

1.                  Words and expressions have the same meaning as in the Native Title Act 1993 (Cth) except for the following:

(a)                      “determination area” means the area covered by this application;

(b)                     laws of the Northern Territory and the Commonwealth means the laws of the Northern Territory and the Commonwealth including legislation, statutory instruments and local laws, and the common law;

(c)                      minerals, petroleum and prescribed substances have the same meanings as in s 2 of the Minerals (Acquisition) Act (NT), s 5 of the Petroleum Act (NT), and s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth) respectively; and

(d)                     natural resources means animals, plants, fish, birds, natural waters including springs and rockholes, and surface soils, clays, stone, rocks and ochre, but excludes minerals, petroleum and prescribed substances.

Native Title

2.                  Native title exists in that part of the determination area described in Schedule 1 (‘the Recognition Area’).

3.                  Native title does not exist in that part of the determination area described in Schedule 2 (‘the Extinguishment Area’).

Native Title Holders

4.                  The persons who hold the native title rights and interests as the common law holders are members of the Patta Warumungu people, as described in Schedule 3.

Native Title Rights and Interests

5.                  The nature and extent of the native title rights and interests in relation to the determination area are rights to use and enjoy the land and waters, including the right to conduct activities incidental to them, being:

(a)                the right to live on the land, and for that purpose, to camp, erect shelters and other structures, and to travel over and access any part of the Recognition Area;

(b)               the right to hunt, gather and take the natural resources of the Recognition Area;

(c)                the right to access, maintain and protect places and areas of importance in the Recognition Area;

(d)               the right to engage in the following activities on the Recognition Area:

(i)                  engage in cultural activities;

(ii)                conduct ceremonies;

(iii)               hold meetings;

(iv)              teach the physical and spiritual attributes of places and areas of importance; and

(v)                participate in cultural practices relating to birth and death including burial rites,

including the power to regulate the presence of others at any of these activities on the Recognition Area.

(e)                the right to make decisions about the use and enjoyment of the Recognition Area by Aboriginal people who recognise themselves as governed by Aboriginal traditional laws and customs and who acknowledge the traditional laws and customs of the native title holders;

(f)                 the right to share and exchange natural resources obtained on or from the determination area, including traditional items made from the natural resources of the Recognition Area;

There are no native title rights and interests in minerals, petroleum or prescribed substances.

Non-Native Title Rights and Interests

6.            The other interests in the determination area are:

(a)        the rights and interests set out in Schedule 4;

(b)        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;

(c)        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

7.                  The relationship between the native title rights and interests and the other interests in relation to the determination area is that:

(a)        the other interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests, but do not extinguish them, and the existence and exercise of the native title rights and interests do not prevent the doing of the activity;

(b)        to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other interests during the currency of those interests;

(c)        if those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect.

Native Title Subject to General Law

8.                  The native title rights and interests are subject to and exercisable in accordance with:

(a)                the laws of the Northern Territory and the Commonwealth

(b)               traditional laws and customs observed by the native title holders.

SCHEDULE 1 – Recognition Area

Parcels of land described as Lot or NTP:

SCHEDULE 2 – Extinguishment Area

Parcels of land described as Lot or NTP:

SCHEDULE 3 - Native Title Holders

(a)     The native title holders are Patta Warumungu Aboriginal people who, according to acknowledged traditional laws and observed customs are connected with the determination area through spiritual, religious and physical associations; and

(i)      descent from named ancestors connected with the application area, as described in paragraph (b); and/or

(ii)     non-descent based connections; as described in paragraph (c).

(b)     All those persons who are descendants of the uppermost generation known to the native title claim group named as follows:

(i)            Zulu Jappangarti;

(ii)          Daisy Nappangarti;

(iii)         Minnie Nappangarti;

(iv)        Bill Foster Jappangarti;

(v)          Ruby Nappangarti;

(vi)        Rosie Burt Nappangarti;

(vii)       Alec Anderson Jappangarti;

(viii)     King Charlie Jampin; and

(ix)        Hector Jampin.

(c)     All those persons who are recognised and accepted, in accordance with traditional law and custom by senior members of the native title claim group, as members of the native title claim group on the basis of one or more of the following non-descent based connections:

(i)            conception and/or birthplace affiliation with the determination area;

(ii)          long term residence and historical association with the determination area and the claim group;

(iii)         close kinship ties, including intermarriage;

(iv)        shared subsection and/or moiety affiliation;

(v)          possession of traditional religious/ceremonial knowledge;

(vi)        authority and responsibility for shared Dreaming tracks and/or sacred sites connected with the determination area; and/or

(vii)       seniority in traditional matters concerning the native title claim group and/or the determination area.

SCHEDULE 4 - Non-native title rights and interests

Exploration Licences under s 16 of the Mining Act (NT).

Mineral Claims under s 86 of the Mining Act (NT).

Mineral Leases under s 60 of the Mining Act (NT).

Authorised holding under s 23(1)(f) of the Mining Ordinance 1939 (NT)

Authorisation under s 178 of the Mining Act (NT)

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (the Act) in respect of an area (the claim area) described in the application, comprising various allotments in the town of Tennant Creek.  The application was filed with the Court on behalf of the Patta Warumungu people on 7 July 2006 and registered with the National Native Title Tribunal on 13 September 2006.  The areas of land surrounding the Tennant Creek township were the subject of a grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act) following the Warumungu Land Claim Report No 31 by the Aboriginal Land Commissioner Mr Justice Maurice on 8 July 1988.  Section 3(1) of that enactment precluded land within the township of Tennant Creek from being available for such a grant.

2                     The native title claim group comprises principally of descendants of the uppermost generation known to the native title claim group and it also encompasses those persons who are recognised, in accordance with traditional law and custom, by senior members of the native title claim group to have connection with the land based on conception or birthplace affiliation with the area; long term residence and historical association with the area and the native title claim group; close kinship ties, including intermarriage; shared subsection or moiety affiliation; possession of traditional religious or ceremonial knowledge; authority and responsibility for shared Dreaming tracks or sacred sites connected with the claim area; or seniority in traditional matters concerning the native title claim group or the claim area. The only respondent is the Northern Territory of Australia.

3                     The parties have agreed that native title exists within certain parcels of land within the claim area and that native title has been extinguished in other parts of the claim area.  They have agreed also about the nature and extent of those native title rights.  They now seek orders which would give effect to a consent determination pursuant to s 87 of the Act.

The Claim area

4                     The claim area originally included 60 administrative parcels of land, covering approximately 42.1 sq km in and around the town of Tennant Creek. The traditional territory of the Patta Warumungu people is said to extend in all directions beyond the claim area.  As I noted above, the Aboriginal Land Commissioner in his Report on the Warumungu Land Claim under the ALR Act recognised those claims.  To complete the context, I note that the territory of the Patta Warumungu people is, in turn, one of ten estates within the Warumungu language region.

5                     Since the original application, one parcel of land, which was only included in the application by administrative error, was removed by order of the District Registrar on 12 September 2006. A further six parcels of land listed in the original application were each subdivided into two parts, as one part of each of those parcels concerned land over which it was agreed native title should be recognised (these new parcels kept the description of the original parcels), and the other part of each of those parcels concerned land over which it was agreed that native title has been extinguished (these new parcels were given new descriptions). Consequently, there are now 65 administrative parcels that make up the claim area.

6                     The parties have agreed that native title exists in 18 of those parcels, which are relatively large and surround, but are within, the declared township.  Those parcels comprise around 80% of the total claim area.  They are described in Schedule 1 to the Orders made today.  They are all vacant Crown land.  I am satisfied that, within the meaning of s 47B(1)(c) of the Act, one or more members of the claim group occupied those parcels of land at the date the application was filed.

7                     The remaining 47 parcels of land are areas where it is agreed that native title has been extinguished. They consist of relatively smaller parcels within the township, being residential and vacant industrial lots, as well as two larger parcels in the south east of the township subject to a pastoral lease, and one larger parcel of vacant Crown land to the east of the township. Those 47 parcels are described in Schedule 2 to the Orders made today.

Whether the proposed consent determination should be made

8                     Section 87 of the Act sets out the Court’s power to make orders sought by consent of the parties.  That section requires the period of notice under s 66 to have elapsed, that a signed copy of the agreed orders has been filed with the Court, and that the Court is satisfied that the orders are appropriate and within its power to make.

9                     The period of notice under s 66 of the Act on this application expired on 10 January 2007, so clearly the first of those criterion has been met.  So, too, has the second criterion: a minute of consent orders signed by both parties was filed with the Court on 31 August 2007.

10                  It remains for the Court to be satisfied that the Orders sought are within the Court’s power and are appropriate to make. For the reasons that follow, I am so satisfied.

11                  Because the Orders sought contain a determination of native title, they must comply with s 94A of the Act.  That section requires that such orders set out details of the matters mentioned in s 225 of the Act.  That sections states:

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 interest confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

12                  “Native title rights and interests” are defined in s 223 (1) of the Act as:

…the communal, group or individual rights and interests of Aboriginal peoples… 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…; and

(b)       the Aboriginal peoples…, 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 evidence before the Court in support of the application includes affidavits of the four named applicants and of three other members of the Patta Warumungu people.  Each of the affidavits speak of the basis of the deponent’s membership of the Patta Warumungu people and of their connection to the claim area.  For example, in Evelyn Nappangarti’s affidavit of 4 April 2006, she states:

Today, I still hold all the rights in Patta country and I am still exercising them. With the other ladies, we still get all the bushtucker from around town: bush honey, bush banana, conkaberries and goanna all over town within the application area. It is harder for me now but I am still going out sometimes. We also collect Spinifex wax in the application area and ochre from near Mary-Ann Dam, just outside the application area.

We are doing ceremony every year at Tingkarli, within the application area. I am helping with the ceremony for young ones and teaching all the kids about that business. My children, as kurtungurlu [custodian], must help out with that

ceremony. I am always singing there and at Nyinkka Nyunyu with Kathleen Fitz. We are still holding sorry camp within the town at Tingkarli and Mulga camps.

14                  Also before the Court in support of the application is a summary report (the report) based upon two expert reports of an anthropologist, Susan Donaldson, which were presented to the Respondent as evidence of the native title rights and interests held by the Patta Warumungu people in the claim area.  The applicants are of the view, and I accept, that the report contains adequate evidence on which to base the making of a consent determination.

15                  According to the report of Ms Donaldson, some practices of the Patta Warumungu people on land within the claim area have continued in the same way since before sovereignty. It states:

…the earliest extant records of the Aboriginal occupants of the application area provide indirect evidence that a society – early identified as Warumungu – existed before sovereignty, that is, prior to 1824. Evidence of land use and occupation practises employed just a generation after sovereignty coupled with details of stable societal characteristics, religious practices and use of a developed language recorded just to generations after sovereignty, lead the author to conclude that [practices] such as these were also exercised by the claimant’s ancestors before sovereignty.

16                  The report sets out in detail the laws and customs of the Patta Warumungu people, including their Dreaming, ceremonial life, social organisation, and systems of land tenure, acquisition of rights, punishment and permission to enter country. It refers to estates, often overlapping, which follow Dreaming tracks and focus on known water sources. In many places, the estate groups, the Patta Warumungu estate group being the relevant one, share the rights to own songs and designs for a Dreaming. 

17                  The full range of rights and interests which Ms Donaldson says exist in the Patta Warumungu estate group over the claim area include a number of rights to use and enjoy the claim area; the right to speak for and make decisions about the claim area; the right to protect significant sights in the claim area; a limited and non-exclusive right to control access to the claim area; the right to prevent disclosure of matters relating to the claim area; the right to be acknowledged as owners of the claim area; and the right to determine membership of the native title claim group. Most, but not all, of those rights are reflected in the proposed determination.  The report also notes particular instances in current times of both junior and

senior members of the native title claim group continuing to observe customary rights and interests within the context of everyday practices and ceremonial occasions.

18                  The material relied upon by the parties in support of the proposed consent determination, in my view, adequately addresses (inter alia) the requirements of ss 223 and 225 of the Act and the appropriateness of making the proposed consent determination.  I accept their submission that the statements of the applicants and the report supports the recognition of native title rights and interests possessed by the native title claim group, as defined by s 223 and explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.

19                  I also conclude on the basis of the material before me that the parties likely to be affected by the proposed consent determination have had sufficient access to independent legal representation; and that the Territory, in providing its consent, has given appropriate consideration to the evidence and to the interests of the community generally; see Munn v Queensland (2001) 115 FCR 109 at [29].  Indeed, the material suggests that both the applicants and the Territory have carefully considered all that material and its significance.

20                  I have also considered the terms of the proposed consent determination.  In my view, it satisfies the requirements of s 225 of the Act.  It is carefully worded.  The native title rights and interests are in appropriately specific terms.  And the nature and significance of the other interests in the areas of the proposed consent determination are also clearly spelled out, as is the consequence of those other interests, both as they presently affect the agreed native title rights and interests, and in the longer term as to how the native title rights and interests will become more enlivened as those other interests come to an end progressively over time.

21                  Where the Court proposes to make a determination that native title exists it must determine whether the native title is to be held in trust and if so by whom: s 55 and 56(1) of the Act.  A nomination in writing to the Court that the Patta Aboriginal Corporation (the Corporation) is to hold the rights and interests comprising the native title in trust for the common law holders pursuant to s 56(2)(a) has been filed.  The Corporation is a body corporate which may be determined under s 56 to hold the rights and interests in trust for the common law holders (see s 59 of the Act and r 4 of the Native Title Prescribed Bodies Corporate) Regulations 1999).  It has consented to act in that capacity.  Consequently, the provisions of s 56 are met and justify the making of para 3 of the proposed consent determination.

CONCLUSION

22                  I am satisfied that it is within the power of the Court, and appropriate in the circumstances, to give effect to the proposed determination without a full hearing of the native title application.  I therefore make the orders and determination which is contained in the Orders now made by the Court for the reasons which I have given.

23                  Finally, I wish to make some remarks about the process by which the proposed consent determination has come about.  There are a large number of native title determination applications in the Northern Territory.  They have presented a considerable challenge to ensure that they are dealt with in as efficient a manner as possible.  To that end, and with the support generally of the claimants (particularly through the Northern Land Council and the Central Land Council as the relevant representative bodies under the Act) and the Northern Territory, as well as other respondents, the Court adopted a strategy of hearing selected cases to determine particular issues of principle, or perhaps more accurately issues which relate to the decided case and to a number of others with similar geographical, cultural, social or legal characteristics.  That process has almost been completed.  It is expected that, as a result of those cases having been decided, many of the claims with which they have common features will progressively resolve by a series of consent determinations.

24                  This is the first consent determination in what, the Court hopes, will be an escalating process.  It has occurred in the framework of that overall strategy.  The process will require the active engagement of the parties to each application.  The present outcome reflects such active engagement in this matter on the part of both the native title claim group and the Northern Territory.  It also reflects the fact that, in some respects, the outcomes which are negotiated may include outcomes beyond the declaration of the existence of native title rights and interests.  The consent determination is to be accompanied by an Indigenous Land Use Agreement, about to be executed.  It has been achieved with the support of the National Native Title Tribunal.  Its role under the Act is an important one, and its capacity to contribute to mediated resolution of native title claims is well illustrated by the present matter.

Associate:

Dated:         31 August 2007