FEDERAL COURT OF AUSTRALIA

Wavehill v Northern Territory of Australia [2011] FCA 581

THE COURT NOTES THAT:

A.    On 29 July 2010 the Applicant made a native title determination application over the land and waters within the bounds of the Dungowan Pastoral Lease (Perpetual Pastoral Lease 1076).

B.    The Applicant and the Respondents to this proceeding have reached agreement as to the terms of a proposed determination of native title in relation to the land and waters covered by the Application.

C.    Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) (the Act) the parties have filed with this Court their agreement in writing (the proposed Determination). The external boundaries of the area subject to the proposed Determination are described in Schedule A of the proposed Determination and depicted on the map comprising Schedule B of the proposed Determination (Determination Area).

D.    Pursuant to ss 87 and 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 proposed Determination.

E.    The parties acknowledge that the effect of making the proposed 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, be recognised as the native title holders for the Determination Area as provided by the proposed 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 of the Determination in respect of the proceeding would be within the 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.    An Aboriginal corporation whose name is to be provided within 12 months, or such further time as the Court may allow, 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.    There be no order as to costs.

5.    The parties have liberty to apply for the following purposes:

(a)    to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Schedule D of this Determination;

(b)    to establish the precise location of the boundaries of land on which the improvements referred to in Schedule D of this Determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements; and

(c)    to establish whether any of the improvements referred to at Schedule D of this determination have been constructed unlawfully.

THE COURT DETERMINES THAT:

The Determination Area

1.    The Determination Area is the land and waters described in Schedule A and depicted on the map comprising Schedule B.

2.    Native title exists in those parts of the Determination Area identified in Schedule C.

3.    Native title does not exist in those parts of the Determination Area identified in Schedule D.

The native title holders

4.    The land and waters of the Determination Area comprise the whole or part of five estates, which are held respectively by the members of the following five estate groups:

(a)    the Ngapurrpinkakujarra group;

(b)    the Narrwan group;

(c)    the Walanypirri group;

(d)    the Yingawunarri group;

(e)    the Narlwan group.

These persons, together with the Aboriginal people referred to in clause 6 hereof, are collectively referred to as ‘the native title holders’.

5.    Each of the estate groups referred to in clause 4 hereof includes persons who are members of the group by reason of:

(a)    patrilineal descent;

(b)    his or her mother, father’s mother or mother’s mother being or having been a member of the group by reason of patrilineal descent;

(c)    having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof.

These persons are collectively referred to as ‘the estate group members’.

6.    In accordance with traditional laws and customs, other Aboriginal people have rights and interests in respect of the Determination Area, subject to the rights and interests of the estate group members, such people being:

(a)    members of estate groups from neighbouring estates;

(b)    spouses of the estate group members.

7.    Each of the estate groups referred to in clause 6(a) hereof includes persons who are members of the group by reason of:

(a)    patrilineal descent;

(b)    his or her mother, father’s mother or mother’s mother being or having been a member of the group by reason of patrilineal descent;

(c)    having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof.

The native title rights and interests

8.    The native title rights and interests of the estate group members that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being:

(a)    the right to travel over, to move about and to have access to those areas;

(b)    the right to hunt and to fish on the land and waters of those areas;

(c)    the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d)    the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1076;

(e)    the right to live, to camp and for that purpose to erect shelters and other structures on those areas;

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

(g)    the right to conduct and to participate in the following activities on those areas:

(i)    cultural activities;

(ii)    cultural practices relating to birth and death, including burial rites;

(iii)    ceremonies;

(iv)    meetings;

(v)    teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs;

(h)    the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;

(i)    the right to share or exchange subsistence and other traditional resources obtained on or from those areas;

(j)    the right to be accompanied on to those areas 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 areas;

(ii)    people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;

(iii)    people required by the estate group members to assist in, observe, or record traditional activities on the areas;

(k)    the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.

These native title rights and interests do not confer on the estate group members possession, occupation, use and enjoyment of the Determination Area, to the exclusion of all others.

9.    The native title rights and interests of the native title holders referred to in clause 6 hereof that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being:

(a)    the right to travel over, to move about and to have access to those areas;

(b)    the right to hunt and to fish on the land and waters of those areas;

(c)    the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d)    the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease 1076;

(e)    the right to camp on those areas;

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

(g)    the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof.

These native title rights and interests do not confer on the native title holders referred to in clause 6 hereof possession, occupation, use and enjoyment of the Determination Area, to the exclusion of all others.

Other interests in the Determination Area

10.    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)    in relation to NT portion 850, the interests of Laverton Nominees Pty Ltd under Perpetual Pastoral Lease 1076;

(b)    in relation to NT portion 2114, part of the West Australian Border (Gordon Downs to Newcastle Waters) Stock Route and the Murranji Stock Route, valid rights of use for the passage of travelling stock;

(c)    the rights and interests of Telstra Corporation Limited:

(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 the Telecommunications Act 1997 (Cth), including rights:

(A)    to inspect land;

(B)    to install and operate telecommunications facilities; and

(C)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; and

(iii)    for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties;

(d)    in relation to NT portions 4862(A), 4863(A) and 4864(A), the interest of the Minister under the Heritage Conservation Act (NT);

(e)    in relation to NT portion 850, the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in the pastoral lease, identified in ss 38(2)-(6) of the Pastoral Land Act 1992 (NT);

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

(g)    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;

(h)    the interests of persons to whom valid and validated rights and interests have been:

(i)    granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or

(ii)    otherwise conferred by statute;

(i)    the following interests granted under the Mining Act (NT), depicted in Schedule E;

(i)    Exploration Licence Title No. 27618 granted on 12 May 2010.

11.    To the extent, if at all, that the exercise of the native title rights and interests referred to in clauses 8 and 9 conflicts with the exercise of the rights and interests of the persons referred to in clause 10, the rights and interests of the persons referred to in clause 10 prevail over, but do not extinguish, the native title rights referred to in clauses 8 and 9.

Other matters

12.    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.

13.    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.

14.    The native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose.

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

Description of Determination Area

The Determination Area comprises the following areas of land:

1.    NT portion 850, including the parts designated as NT Portions 4862(A), 4863(A) and 4864(A) being land the subject of Perpetual Pastoral Lease 1076;

2.    NT portion 2114, being land comprising part of the West Australian border (Gordon Downs to Newcastle Waters) Stock Route and the Murranji Stock Route.

Schedule B

Map of Determination Area

Schedule C

Areas where native title exists

The areas of land and waters in respect of which the native title rights and interests in clauses 8 and 9 apply are:

1.    NT portion 850, including those parts designated as NT portions 4862(A), 4863(A) and 4864(A), being land the subject of Perpetual Pastoral Lease 1076, except those parts thereof referred to in Schedule D;

2.    NT portion 2114, being land comprising part of the West Australian Border (Gordon Downs to Newcastle Waters) Stock Route and the Murranji Stock Route, except those parts thereof referred to in Schedule D.

Schedule D

Areas where native title does not exist

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

1.    Those parts of the Determination Area covered by public works (including adjacent land or waters as defined in s 251D of the Act) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date, including but not limited to:

(a)    public roads, whether rural roads, arterial roads or national highways;

(b)    community and pastoral access roads which are not otherwise public roads;

(c)    gravel pits adjacent to the roads referred to at paragraphs (a) and (b) hereof used to maintain those roads;

(d)    access roads or tracks to the public works referred to in this clause;

(e)    Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads;

(f)    river and rain gauges;

(g)    transmission and distribution water pipes and associated infrastructure;

(h)    sewer pipes, sewer pump stations and associated infrastructure; and

(i)    electricity transmission lines, towers, poles and associated infrastructure;

2.    In relation to NT portion 850, those parts of the Determination Area covered by pastoral improvements including but not limited to:

(a)    a homestead, house, sheds and buildings including:

(i)    1 homestead;

(ii)    4 sheds;

(iii)    1 cottage;

(iv)    4 bedroom living quarters;

(v)    1 camp shed (Frazier’s bore);

(vi)    1 camp shed (Paterson’s Bore); and

(vii)    1 workshop;

(b)    bores including:

(i)    Azuma Nelson bore located 41 km South West of Homestead bore;

(ii)    Buchanon bore located 12.5 km East Southeast of Homestead bore;

(iii)    Casius Clay bore located 62.75 km South of Homestead bore;

(iv)    Costa Tszyu bore located 74.5 km South West of Homestead bore;

(v)    Evander Holyfield bore located 61.25 km South of Homestead bore;

(vi)    Famechon bore located 29 km South West of Homestead bore;

(vii)    Fenech bore located 38 km South Southwest of Homestead bore;

(viii)    Foreman bore located 60.75 km South West of Homestead bore;

(ix)    Frazier bore located 53.25 km South Southwest of Homestead bore;

(x)    Hagler bore located 73.5 km South West of Homestead bore;

(xi)    Harding bore located 27.75 km South of Homestead bore;

(xii)    Homestead bore;

(xiii)    Jack Dempsey bore located 63.5 km South Southwest of Homestead bore;

(xiv)    Joe Louis bore located 51.5 km South Southeast of Homestead bore;

(xv)    Johannsen bore located 47.25 km South Southwest of Homestead bore;

(xvi)    Madigan bore located 26.25 km South Southwest of Homestead bore;

(xvii)    Mick Tyson bore located 53.75 South of Homestead bore;

(xviii)    Mohammad Ali bore located 66.75 km South West of Homestead bore;

(xix)    No. 12 bore located 9.25 km South East of Homestead bore;

(xx)    No. 13 bore located 12.25 km West Southwest of Homestead bore;

(xxi)    Patterson bore located 45 km South of Homestead bore;

(xxii)    Rocky Marciano bore located 58.75 km South Southwest of Homestead bore;

(xxiii)    Rose bore located 37 km South Southeast of Homestead bore;

(xxiv)    Sonny Liston bore located 55.75 km South Southwest of Homestead bore;

(xxv)    Thomas Hearns bore located 75 km Southwest of Homestead bore; and

(xxvi)    Yellow Waterhole bore located 12.5 km South Southwest of Homestead bore;

(c)    turkey nests including 1 unnamed turkey nest;

(d)    squatters tanks including:

(i)    Barnes tank located 60.75 km South West of Homestead bore;

(ii)    Carruthers tank located 36 km South Southwest of Homestead bore;

(iii)    Casius Clay tank located 64.5 km South Southeast of Homestead bore;

(iv)    Danny Green tank located 58.5 km South West of Homestead bore;

(v)    Harding tank located 27.75 km South of Homestead bore;

(vi)    Homestead tank located 1.25 km East of Homestead bore;

(vii)    Leon Spinx tank;

(viii)    Leonard tank located 71 km South Southwest of Homestead bore;

(ix)    Michael tank located 20 km South West of Homestead bore;

(x)    Mundine tank located 44.75 km South Southeast of Homestead bore;

(xi)    Sands tank located 28.5 km South Southeast of Homestead bore;

(xii)    Vince Carter tank located 73 km South West of Homestead bore; and

(xiii)    Yellow Waterhole tank located 10.5 km South Southwest of Homestead bore;

(e)    constructed dams and/or constructed stock watering points including:

(i)    Bugner dam located 18 km West of Homestead bore;

(ii)    Gattelarie dam located 20 km South of Homestead bore;

(iii)    Highway dam located 6 km East Southeast of Homestead bore;

(iv)    Casius Clay waterhole located 62 km South Southeast of Homestead bore;

(v)    Madigan waterhole located 26 km South Southwest of Homestead bore; and

(vi)    Yellow waterhole located 12 km South West of Homestead bore;

(f)    stockyards including:

(i)    Frazier’s yard located 53.25 km South Southwest of Homestead bore;

(ii)    Patterson’s yard located 45 km South of Homestead bore; and

(iii)    Yellow Water Hole Yard located 10.5 km south Southwest of Homestead bore;

(g)    trapyards including:

(i)    Bugner Tank yard located 18 km West of Homestead bore;

(ii)    Homestead Tank yard located 1.25 km East of Homestead bore;

(iii)    No. 12 Bore yard located 9.25 km South East of Homestead bore;

(iv)    Michael tank yard located 20 km South West of Homestead bore;

(v)    Gattelarie dam yard located 20 km South of Homestead bore;

(vi)    Famechon Bore yard located 29 km South West of Homestead bore;

(vii)    Madigan bore yard located 26.25 km South Southwest of Homestead bore;

(viii)    Madigan waterhole yard located 26km South Southwest of Homestead bore;

(ix)    Harding tank yard located 27.75 km South of Homestead bore;

(x)    Fenech bore yard located 38 km South Southwest of Homestead bore;

(xi)    Caruthers tank yard located 36 km South Southwest of Homestead bore;

(xii)    Rose bore yard located 37 km South Southeast of Homestead bore;

(xiii)    Azuma Nelson bore yard located 41 km South West of Homestead bore;

(xiv)    Patterson bore yard located 45.5 km South of Homestead bore;

(xv)    Johannsen bore yard located 47.25 km South Southwest of Homestead bore;

(xvi)    Joe Louis bore yard located 51.5 km South Southeast of Homestead bore;

(xvii)    Cassius Clay tank yard located 64.5 km South Southeast of Homestead bore;

(xviii)    Cassius Clay bore yard located 62.75 km South of Homestead bore;

(xix)    Rocky Marciano bore yard located 58.75 km South Southwest of Homestead bore;

(xx)    Jack Dempsey bore yard located 63.5 km South Southwest of Homestead bore;

(xxi)    Leonard tank bore located 71 km South Southwest of Homestead bore;

(xxii)    Foreman bore yard located 60.75 km South West of Homestead bore;

(xxiii)    Costa Tszyu yard located 75.2 km South West of Homestead bore;

(xxiv)    Mohammed Ali bore yard located 66.75 km South West of Homestead bore;

(xxv)    Leon Spinx tank yard;

(xxvi)    Vince Carter tank yard located 73 km South West of Homestead bore;

(xxvii)    Thomas Hearns bore yard located 78.5 km South West of Homestead bore;

(xxviii)    Sonny Liston bore yard located 55.75 km South Southwest of Homestead bore;

(xxix)    Mike Tyson bore yard located 53.75 South of Homestead bore;

(xxx)    Evander Holyfield bore yard located 61.25 km South of Homestead bore;

(h)    highway airstrips including an airstrip located at homestead located 0.2 km Southwest of Homestead.

The areas described by 3(a)-(h) comprise land on which the improvements have been constructed prior to the date of this determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements.

Schedule E

Map of Interests granted under the Mining Act (NT)

REASONS FOR JUDGMENT

Introduction

1    The application the subject of this proceeding is for a determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the Dungowan Pastoral Lease (Perpetual Pastoral Lease 1076) in the Northern Territory.

2    The application is one of six applications being heard together, because they are geographically proximate. They are all in the north western region of the Northern Territory, but over 600 km south of Darwin. They are to the west of the Newcastle Waters Station, which itself is just west of the Stuart Highway, and to the east of the Gregory National Park. They are about half-way along a diagonal line between Timber Creek on the Victoria Highway and Elliott on the Stuart Highway. There has been a determination of native title in relation to the Newcastle Waters Station, after an extended hearing: King v Northern Territory (2007) 162 FCR 89.

3    One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That has been facilitated by the amendments to s 87 by the Native Title Amendment Act 2009 (Cth). It is very appropriate, therefore, that this application and the related applications have resulted in the parties agreeing to the terms of orders to be made by consent pursuant to s 87 of the Act.

4    The Dungowan Pastoral Lease, the area over which the proposed consent determination will be granted, is an area of about 4454 km2. It is described in more detail in Schedule A and in the map which is Schedule B to the Determination. The other areas over which the related determinations are to be made also encompass areas of particular pastoral leases. They are:

    the application of Billy Campbell (on behalf of the Ngapurrpinkakujarra Group, the Narrwan Group, the Walanyipirri Group, the Yingawunarri Group, the Purruruka Group, the Yilyilyimarri Group, the Japuwuny-Winija Group, the Bilnara Group, the Sampana Group) over the area of the Camfield Pastoral Lease, covering an area of some 2769 km2;

    the application of George King (on behalf of the Ngapurrpinkakujarra Group, the Yingawunarri Group, the Purrurruka Group) over the area of the Montejinni East Pastoral Lease, covering an area of some 1598 km2;

    the application of Alan Young (on behalf of the Nirrina Group, the Yingawunarri Group, the Purrurruka Group, the Yilyilimarri Group, the Billinara Group) over the area of the Montejinni West Pastoral Lease, covering an area of some 1495 km2;

    the application of Jimmy Wavehill (on behalf of the Ngapurrpinkakujarra Group, the Yingawunari Group, the Narlwan Group, the Luwaja Group, the Tururrutpa Group, the Beregumayin-Ngarrajanaggu Group) over the area of the Birrimba Pastoral Lease, covering an area of some 2595 km2;

    the application of Alan Young (on behalf of the Ngapurrpinkakujarra Group, the Yingwunarri Group, the Liwi Group, the Luwaja Group, the Nirrina Group, the Beregumayin-Ngarrajanaggu Group) over the area of the Killarney Pastoral Lease, covering an area of some 2819 km2.

5    The total area encompassed by the six determinations is in excess of 15,730 km2, a very considerable area.

6    The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications were and are the traditional owners of that land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement.

7    The Applicant has filed the following documents which have been signed by the parties:

(a)    Proposed Orders and Determination of Native Title by Consent dated 13 May 2011 (the Minute);

(b)    Statement of Joint Agreed Facts of the Applicant and the First and Second Respondents in Support of the Minute of Proposed Orders and Determination of Native Title over the Dungowan Pastoral Lease by Consent dated 13 May 2011; and

(c)    Joint Submission of the Applicant and the First and Second Respondents in Support of the Minute.

B.    Section 87 of the Act

8    Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the Act has ended (s 87(1));

(b)    there is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));

(c)    the terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87 (1)(b));

(d)    the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87 (1)(c)); and

(e)    the Court considers that it would be appropriate to make the order sought (ss 87(1) and (2)).

9    The focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36] to [37] that:

The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

10    Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J:

State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

C.     The application of s 87 to the Application

11    The requirements of s 87 of the Act have been satisfied in the present case. In particular:

(a)    the period specified in the notice given under s 66 ended on 2 February 2011 (s 87(1));

(b)    the parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i));

(c)    the parties have recorded their agreement in the Minute (s 87 (1)(b));

(d)    an order in terms of or consistent with the Minute would be within the Court’s power because:

(i)    the Application is valid and was made in accordance with s 61 of the Act;

(ii)    the Application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a));

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

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

(i)    all parties are legally represented;

(ii)    the Northern Territory as First Respondent obtained searches of land tenure and mining and other relevant interests to determine the extent of “other interests” within the proposed determination area and provide copies of those searches to all parties;

(iii)    the Second Respondent, the holder of Perpetual Pastoral Lease 1076, provided all parties with a list of pastoral improvements on Perpetual Pastoral Lease 1076 which affect native title;

(iv)    the parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in Order 10 and Schedules C, D and E of the Determination (s 225(c));

(v)    there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Act (ss 87(1) and (2));

(vi)    the Northern Territory as First Respondent has played an active role in the negotiation of the consent determination. In doing so, the Northern Territory, acting on behalf of the community generally, having had regard to the requirements of the Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances.

12    That assessment process has included the production and assessment of extensive material to show the connection of the claim group with the country covered by the Dungowan Pastoral Lease. That material included that prepared by Jeff Stead, anthropologist engaged on behalf of the Applicant and addressed the Northern Territory’s Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009. It was then considered by the First and Second respondents. The First Respondent sought advice about that material from another anthropologist, Basil Sansom. The First and Second Respondents raised various matters about that material with the Applicant and subsequently addressed those matters. Ultimately, the parties reached agreement that the native title claim group named in Schedule A of the application and in the connection material are the persons who hold the claimed native title rights and interests in the determination area. That primary material has been filed. In my view, it clearly justifies the approach taken by the First and Second Respondents.

13    Accordingly, it is appropriate to make the proposed orders which recognise:

(1)    that the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs; and

(2)    that the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and

(3)    that the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs; and

(4)    that the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.

14    There is one aspect of the proposed determination upon which it is necessary to comment. Section 55 of the Act requires the Court, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by ss 56 and 57 of the Act. They respectively relate to holding the native title on trust and with the non-trust functions of prescribed bodies corporate. The proposed determination provides that the native title is not to be held on trust. It provides for an Aboriginal corporation to be nominated to the Court within 12 months or such further time as the Court may allow to be the prescribed body corporate for the purposes of s 57(2) and to perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate. The Court, of course, must act in accordance with s 55, so it anticipates that those steps will be taken following the Determination in a timely manner and certainly within the 12 month period specified. There would need to be persuasive reasons why the Court should allow further time having regard to the terms of s 55.

15    For the reasons given, the Determination is now made.

Associate:

Dated:    2 June 2011