FEDERAL COURT OF AUSTRALIA

Ampetyane v Northern Territory of Australia [2009] FCA 834

NATIVE TITLE – consent determination - request for orders to be made under s 87 of the Native Title Act 1993 (Cth) – consideration of whether the orders appear appropriate to the Court and whether orders ought to be made as sought determining native title rights and interests in the Ilkewartn and Ywel and other groups.

Native Title Act 1993 (Cth), ss 57, 66, 87, 94A, 225

Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland(2005) 223 ALR 62 – cited

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 - cited

Munn (for and on behalf of the Gungari People) v Queensland [2001] FCA 1229 – cited

Nankiriny v State of Western Australia [2004] FCA 1156 - cited

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

Wilson v Northern Territory [2009] FCA 800 - cited

LINDSAY BIRD AMPETYANE & ORS ON BEHALF OF THE ILKEWARTN AND YWEL ANMATYERR PEOPLE v NORTHERN TERRITORY OF AUSTRALIA and NT GAS PTY LTD

NTD 6004 of 1999

REEVES J

7 AUGUST 2009

DESERT BORE

BEING SATISFIEDthat a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so by consent of the parties and pursuant to section 87 of the Native Title Act 1993 (Cth),

THE COURT ORDERS 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.             Ilkewartn Ywel Aboriginal Corporation is:

(a)                    to be the prescribed body corporate for the purposes of subs 57(2) of the Native Title Act 1993 (Cth) (‘the Act’);

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

4.             There be no order as to costs.

THE COURT DETERMINES THAT:

The determination area

1)      The determination area is the area described in Schedule A.

2)      Native title exists in the determination area, but excluding that part of the determination area referred to in Schedule B.

The native title holders

3)      There are two landholding groups with interests in estates in the determination area: Ilkewartn and Ywel Anmatyerr.

4)      The persons who hold the common or group rights comprising the native title are the Aboriginal persons who are;

(a)        members of the Ilkewartn and Ywel Anmatyerr landholding groups by virtue of descent (including adoption) through father’s father, father’s mother, mother’s father and mother’s mother being;

(i)               Ilkewartn arrengarl akem - belonging to Ilkewartn through father's father;

(ii)             Ilkewartn atyemeyarl akem - belonging to Ilkewartn through mother's father;

(iii)            Ilkewartn aperlarl akem - belonging to Ilkewartn through father's mother;

(iv)           Ilkewartn anyanyarl akem - belonging to Ilkewartn through mother's mother;

(v)             Ywel arrengarl akem - belonging to Ywel through father’s father;

(vi)           Ywel atyemeyarl akem - belonging to Ywel through mother’s father;

(vii)          Ywel aperlarl akem - belonging to Ywel through father’s mother;

(viii)        Ywel nyanyarl akem – belonging to Ywel through mother’s mother;

or

(b)       recognised and accepted as members of one or both of the Ilkewartn and Ywel Anmatyerr landholding groups by senior members of those landholding groups on the basis of one or more of the following non-descent based connections:

(i)       spiritual identification with and responsibility for the area;

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

(iii)      long term residence of the area;

(iv)      close kinship ties, including intermarriage;

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

(vi)      possession of secular knowledge of the area;

(vii)     possession of traditional religious knowledge, authority and responsibility for the area;

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

(ix)      seniority in traditional matters concerning the claim group and/or the area.

The native title rights and interests

5)      The native title rights and interests of the native title holders are the rights possessed  under and exercisable in accordance with their traditional laws and customs, including the right to conduct activities necessary to give effect to them, 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;

f)        the right to light fires for domestic purposes, but not for the clearance of vegetation;

g)      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;

h)      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;

v)teaching the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs,

including the power to regulate the presence of others at any of these activities on the land and waters, other than persons exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

i)        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;

j)        the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;

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.

Other interests in the determination area

6)      The nature and extent of other interests in relation to the determination area are the interests, created by the Crown or otherwise, as follows:

(a)    interests of Gilbert Bowman Nominees Pty Ltd (ACN 007 761 122) as trustee for the Gilbert Bowman Family Trust Pine Hill Station under Perpetual Pastoral Lease No. 1030;

(b)   the Territory as the grantee of easement in gross 189878 being an Energy Supply Easement within the meaning of Section 36EA of and Schedule 2 to the Crown Lands Act granted for the purposes of and in connection with the Amadeus Basin to Darwin natural gas pipeline;

(c)    the interests of NT Gas Pty Ltd:

(i)                  as the grantee of rights pursuant to easement in gross 189878; and

(ii)                as the holder of Pipeline Licence No. 4 granted on 13 December 1985 under the Energy Pipelines Act (NT):

in connection with the gas pipelines the subject of those instruments;

(d)   The following exploration licences granted under section 16 of the Mining Act:

Number          Expiry Date    Holder

23671             07/12/09         Arafura Resources Ltd

24741             20/04/12         Nupower Resources Ltd

25627             26/08/13         Dynasty Metals Australia Ltd

26374             15/04/14         Nupower Resources Ltd

(e)    the interests of the easement holder pursuant to access easement 256131 granted to the proprietors of NT portion 2427;

(f)     the interests of the easement holder pursuant to access easement 256127 granted to the proprietors of NT portion 3694;

(g)    the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in the pastoral leases, identified in s. 38(2)-(6) of the Pastoral Land Act 1992 (NT);

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

(i)      the rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties;

(j)     The interests of persons to whom valid and validated rights and interests have been:

(i)         Granted by the Crown pursuant to statute otherwise in the exercise of 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.

Other matters

8)      There are no native title rights and interests in:

a)      minerals (as defined in s. 2 of the Minerals (Acquisition) Act (NT));

b)      petroleum (as defined in s. 5 of the Petroleum Act (NT));

c)      prescribed substances (as defined in s. 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s. 5(1) of the Atomic Energy Act 1953 (Cth)),

in the determination area.

The term “natural resources” means animals, birds, fish, plants, including timber, wax, resin and gum, and surface soils, clays, stone, rocks and ochre, but does not include minerals, petroleum and prescribed substances.

The term “natural waters” includes springs and rockholes.

9)      The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

Schedule A

Determination Area

The determination area consists of:

1.      that part of NT Portion 725 situated east of the Stuart Highway,

2.      NT portions 6108, 6109 and 6110 and 6646.

3.      The area delineated on survey plan S2007/020A to G.

Schedule B

Areas where native title does not exist

Native title rights and interests have been wholly extinguished in the following area of land:

1.         In the area delineated on survey plan S2007/020A to G.

REASONS FOR JUDGMENT

introduction

1                                             This is an application for a determination of native title in respect of an area of approximately 117,600 hectares of land located along the Stuart Highway approximately 15 kilometres south of Ti Tree and 130 kilometres north west of Alice Springs, comprising the eastern half of the Pine Hill Pastoral Lease (‘the claim area’). 

2                                             The original native title determination application was filed with the Court on 6 July 1999 and subsequently amended on 26 July 1999.  The application as so amended was registered with the National Native Title Tribunal (‘the NNTT’) on 24 September 1999.  Leave was granted by this Court on 29 November 2006 to the applicants to amend the application.  The amended application was accepted for registration by the Registrar of the NNTT on 16 March 2007.  

3                                             The parties to the application have reached agreement about the existence of native title and about the nature and extent of the native title rights. They now ask the Court to make an order in the terms of a minute of proposed consent determination filed with the Court on 3 July 2009 (‘the minute’).  In addition, the applicants and the Northern Territory have filed a statement of agreed facts, a joint tenure report and joint submissions, in support of the minute.

THE APPLICANTS

4                                             It is agreed that there are two landholding groups with interests in estates in the claim area: the Ilkewartn and Ywel Anmatyerr.  The persons who hold the common or group rights comprising the native title are the Aboriginal persons who are members of the Ilkewartn and Ywel Anmatyerr landholding groups by virtue of descent (including adoption) through father’s father, father’s mother, mother’s father and mother’s mother, or who are recognised and accepted as members of one or both of the Ilkewartn and Ywel Anmatyerr landholding groups by senior members of those landholding groups, on the basis of one or more non-descent based connections set out in paragraph 4(b) of the minute.

5                                             The applicants and the Northern Territory agree that the materials filed in the Court disclose in detail the laws and customs of the Ilkewartn and Ywel Anmatyerr people.  In particular, they agree the materials include details of the Ilkewartn and Ywel Anmatyerr peoples’ mythological traditions; ceremonial life; systems of land tenure; including their land holding groups; estates and dreamings; and the rules about the transmission of customary knowledge.  The historical and contemporary connections of the Ilkewartn and Ywel Anmatyerr people to the claim area are also described in the materials and in the affidavits from individual applicants, including Archie Glenn Angal, Lindsay Bird Ampetyan, Harold Payne Ampetyan, Dorothy Ampetyan and Bunny Ampetyan. 

THE CLAIM AREA

6                                             The claim area is subdivided into four areas as follows:

·                     That part of NT portion 725 situated east of the Stuart Highway;

·                     NT portions 6108, 6109 and 6110;

·                    NT portion 6645 - a road reserve area delineated on survey plan S2007/020A to G; and

·                     NT portion 6646.

7                                             The parties agree that native title rights and interests have been wholly extinguished in the area delineated on survey plan S2007/020A to G.  But in each of the other areas, collectively called the Recognition Area by the parties, the parties are agreed that native title should be recognised. The native title rights and interests that the parties agree should be recognised are particularised in paragraph 5 of the minute.

the making of the agreement

8                                             The process and history of the negotiations between the parties to reach agreement is outlined in the statement of agreed facts. In summary, that statement discloses that, in September 2004 the applicants, through their solicitors, provided to the Northern Territory an anthropological report, prepared by Mr Craig Elliott.  In that report, Mr Elliott outlined the laws and customs governing the applicants’ relationship to each other and their connection to the claim area. That report was supplemented by a further report in October 2006.  In this supplementary report, Mr Elliott addressed specific issues raised by Emeritus Professor Basil Sansom, who undertook an assessment of his 2004 anthropological report for the Northern Territory.  The Northern Territory advised the applicants in February 2007 that it was satisfied that the materials provided formed a proper basis for the Northern Territory to enter into an indigenous land use agreement and to join in proposing a consent determination to the Court in settlement of these proceedings.

THE Relevant statutory provisions

9                                             The power of the Court to make a determination of native title in circumstances where the parties reach agreement is contained in s 87 of the Native Title Act 1993 (Cth) (the Act). Section 87 provides that if a number of conditions are met, the Court may make an order in, or consistent with, the terms of the agreement reached between by the parties, without holding a hearing. Those conditions are set out in s 87(1) of the Act as follows:

Power of Court

1.         If, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a)        agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

(i)        the proceedings; or

(ii)   a part of the proceedings; or

(iii) a matter arising out of the proceedings; and

(b)        the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

(c)          the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; and

the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. 

THE PRE-CONDITIONS IN ss 87(1)(a) and (b) ARE MET

10                                          In this matter, the period specified in the notice given under s 66 of the Act ended on 2 August 2000. The minute filed with the Court (see [3] above), has been signed by all the parties to the proceedings and it relates to the whole of the proceedings. Accordingly I am satisfied that the pre-conditions set out in ss 87(1)(a) and (b) of the Act have been met.

THE COURT HAS THE POWER TO MAKE THE CONSENT DETERMINATION

11                                          Section 94A of the Act requires an order for the determination of native title to set out details of the matters mentioned in s 225 of the Act. Having considered the terms of the minute, I am satisfied that they address the requirements of ss 94A and 225.  Accordingly, I am satisfied that the Court has power to make of the consent determination sought.

IT IS APPROPRIATE TO MAKE THE CONSENT DETERMNATION

12                                          The remaining requirement of s 87(1) is whether it is appropriate to make the order reflecting the agreement reached by the parties.

13                                          The discretion conferred by s 87(1) must be exercised judicially, and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62 at [7] .  One of the most important purposes of the Act is the resolution of disputes by negotiation and agreement rather than by litigation.

14                                          As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria (‘Lovett’) [2007] FCA 474 at [61] (with whom I respectfully agree):

“… 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…”.

15                                          It follows that the central issue in an application for a consent determination under s 87 of the Act is whether there exists a free and informed agreement between the parties.

16                                          In assessing whether a free and informed agreement has been reached, the Court pays close regard to the process the state respondent party has followed in assessing the evidence establishing the existence of native title.  On this aspect, Emmett J observed in Munn v Queensland (‘Munn’)[2001] FCA 1229; (2001) 115 FCR 109 that (at [29]):

“… [This] would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.”

I respectfully agree with his Honour’s observations.

17                                          Other important factors that various decisions of the Court have pointed to  in assessing whether the agreement reached was free and informed, include:

·        Whether the parties have independent and competent legal representation: Munn at [29], [39] and [40].

·        Whether the terms of the proposed order are unambiguous and clear: Patta Warumungu v Northern Territory of Australia [2007] FCA 1386 at [20].

·        Whether the agreement has been preceded by a mediation process: Nankiriny v State of Western Australia [2004] FCA 1156 at [6].

18                                          In this case, the parties have had the benefit of independent and competent legal representation in arriving at the agreement, the terms of the minute are unambiguous and clear and the agreement has been produced as a result of a process of negotiation.  

19                                          Turning then to the involvement of the state respondent party, the Northern Territory.  In my view, it is clear on the evidence before me that the Northern Territory has taken a real and significant interest in the proceedings.  Before the proposed consent orders were signed, the Northern Territory had Emeritus Professor Sansom consider the anthropological reports prepared by Mr Elliott going to the existence of native title.  Professor Sansom’s queries in relation to the report initially provided were subsequently answered to his satisfaction in Mr Elliott’s supplementary report.  Furthermore, in March 2009, the Northern Territory Cabinet considered the proposed consent orders and instructed the Solicitor for the Northern Territory to agree to the proposed consent determination of native title.  The joint submissions of the applicant and the Northern Territory indicate that the parties are in agreement that there is adequate evidence to support the consent determination. I understand the term adequate evidence to reflect the fact that there is a credible or arguable basis for the application, which in my view is the appropriate standard: see Lovett at [37]-[38].  I am therefore satisfied that the interests of the community generally have been properly considered by the Northern Territory.

20                                          For these reasons, I am satisfied that it is appropriate that the Court make the consent determination sought.

prescribed body corporate

21                                          The applicant has nominated the Ilkewartn Ywel Aboriginal Corporation (‘the Corporation’) as the prescribed body corporate to hold in trust the native title of the claimant group following the determination of these proceedings pursuant to s 57(2) of the Act.  The nomination is in writing and the Corporation has given its consent to the nomination.  I am satisfied that the requirements of the Act have been met.

conclusion

22                                          Finally, I wish to make some remarks about the process by which this consent determination has come about. Because of a long history with the Northern Territory land claims process and native title claims, the legal practitioners employed with both the Northern Land Council and the Central Land Council are generally very experienced and competent.  The legal practitioners employed to deal with land claims and native title claims in the Northern Territory government are similarly experienced and competent.  Moreover from my experience with the native title list in the Northern Territory, all of the legal practitioners and the parties they represent appear to be willing to progress the matters in the list in a co-operative manner, as quickly and efficiently as possible.  To that end, in 2008, it was agreed by all involved to adopt a goal to finalise all matters in the Northern Territory native title list – then numbering approximately 160 - by 2013.  As a result, it is expected most of the outstanding applications will be progressively resolved by a series of consent determinations. 

23                                          This is only the second consent determination in the southern part of the Northern Territory and the third in the whole of the Northern Territory – I made a consent determination in Elliott last week: see Wilson v Northern Territory [2009] FCA 800.  Nonetheless, given the co-operative approach of the legal practitioners and the parties I have mentioned above, I am confident that these two consent determinations will be the first of many that the Court will be making in the Northern Territory in coming months and years.

24                                          I congratulate the parties on reaching this agreement.  In so doing, I congratulate the native title holders whose rights will now be recognised.  The order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Ilkewartn and Ywel People, and is held by those peoples. Of course, this order does not grant something new to the Ilkewartn and Ywel peoples, it merely recognises what they have long held.

Associate:

Dated: 7 August 2009