FEDERAL COURT OF AUSTRALIA

Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia [2011] FCA 766

THE COURT NOTES THAT:

A.    The Applicants in this proceeding have made a native title determination application (“the application”) that relates to an area of land and waters which is the subject of a proposed determination of native title.

B.    The Applicants, the Northern Territory of Australia and the Pastoral Respondents (“the parties”) have reached agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the application (“the Determination area”). The external boundaries of the Determination area are described in Schedule A of the Determination.

C.    Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) (“the Act”), the parties hereby file with this Court their agreement in writing (“the Determination”).

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 Determination.

E.    The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination area as provided by the Determination.

F.    The parties have requested that the Court hear and determine this proceeding in accordance with their agreement.

BEING SATISFIED that a determination of native title in the terms set out in the Determination in respect of this proceeding would be within 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 BY CONSENT THAT:

1.    There be a determination of native title in the 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.    In the event that there is no nomination within the time specified in accordance with Order 3 or such later time as the Court may order, the matter is to be listed for further directions.

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

(c)    to establish the precise location and boundaries of any public works and adjacent land and waters identified or otherwise referred to in Schedule C of the Determination;

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

(e)    to establish whether any pastoral improvements referred to in Schedule C of the Determination have been constructed unlawfully.

6.    There be no order as to costs.

THE COURT DETERMINES THAT:

The determination area

1.    The Determination area comprises Northern Territory Portion (“NT Portion”) 716, being the land and waters more particularly described in Schedule A and depicted on the map contained in Schedule B.

2.    Native title exists in the Determination area.

3.    Native title does not exist in those parts of the Determination area described in Schedule C.

The native title holders

4.    The Determination area comprises four estate areas associated with the Mirtartu, Warupunju, Arrawajin and Tijampara landholding groups.

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

(a)    members of the Mirtartu, Warupunju, Arrawajin or Tijampara landholding groups 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 the Mirtartu, Warupunju, Arrawajin or Tijampara landholding groups by senior members of those groups on the basis of non-descent connections to an estate.

Native title rights and interests

6.    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 waters 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,

and, subject to the rights of any person arising under the laws in force in the Northern Territory of Australia to be present on the land, the right to privacy in the exercise and enjoyment of those activities;

(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.

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 referred to in paragraphs 6(c), 6(d), 6(e) and 6(j) 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.

9.    The native title rights and interests referred to in paragraph 6 hereof 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 acknowledged and traditional customs observed by the native title holders.

Other rights and interests

10.    The nature and extent of other interests in relation to the determination area are the interests, created by the Crown or otherwise, and are:

(a)    the interest of the pastoral lease holders Peter Walker Saint and Brenda Marie Saint under Perpetual Pastoral Lease No 1109;

(b)    the following mining and/or petroleum tenements:

Number Expiry Date Holder

(c)    the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in the pastoral lease and identified in s 38(2)–38(6) of the Pastoral Land Act 1992 (NT);

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

11.    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;

(e)    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

12.    In relation to NT Portion 716, the relationship between the native title rights and interests referred to in paragraph 6 and the other rights and interests referred to in paragraph 10 is that the other interests and the doing of any activity which is 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.

Other matters

13.    There are no native title rights and interests in:

(a)    minerals (as defined in s 2 of the Minerals Acquisition Act 1953 (NT));

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

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

14.    Unless the contrary intention appears, a word or expression used in the Native Title Act 1993 (Cth) has the same meaning in this Determination as it has in the Act.

15.    In this Determination the term:

(a)    ‘natural resources’ means animals ferae naturae, 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;

(b)    ‘natural waters’ includes springs and rockholes.

Schedule A

Determination Area

1.    The Determination area comprises NT Portion 716, being an area held under Perpetual Pastoral Lease 1109.

2.    The following areas within the external boundaries of NT Portion 716 are excluded from the Determination area:

(a)    NT Portion 2345; and

(b)    NT Portion 2346.

        Schedule B – Map of the 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:

Pastoral improvements

Those parts of the Determination area being:

(a)    a homestead, house, sheds and other buildings;

(b)    a constructed airstrip;

(c)    bores, turkey nests, squatters’ tanks, constructed dams or other constructed stock watering points;

(d)    stockyards and trapyards.

The areas described in (a) to (d) comprise the land on which the improvements were 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.

Public works

Those parts of the Determination area being the land or waters on which any public work as defined in s 253 of the Act is situated, including:

(a)     public roads and bores;

(b)    gravel and fill pits that are on land or waters defined in s 251D of the Act;

(c)     transmission water pipes, distribution water pipes, sewer pipes, bores, sewer pump stations, overhead power lines.

The areas described in (a) to (c) comprise the land on which the public works were constructed prior to the date of this Determination.

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.

REASONS FOR JUDGMENT

1    On 28 February 2001, a native title determination application was filed in the Court seeking the recognition of native title rights and interests over Northern Territory Portion (‘NT Portion’) 716, held under Perpetual Pastoral Lease 1109 and known as Kurundi Station. Kurundi Station is located 140 kilometres south east of Tennant Creek in the Northern Territory of Australia and covers an area of approximately 3,800 square kilometres. The application is brought by representatives of four landholding groups that together seek recognition as native title holders. In keeping with the Court’s practice in relation to Northern Territory native title claims, the application was assigned the short title of ‘Kurundi’.

2    The application is brought on behalf of the members of landholding groups associated with four estates: the Mirtartu, Warupunju, Arrawajin and Tijampara landholding groups. The respondents are the Northern Territory of Australia and Mr Peter Saint and Mrs Brenda Saint, the pastoral lease holders.

3    On 14 June 2011, the Applicants filed a Minute of Proposed Consent Determination of Native Title seeking a determination pursuant to s 87 of the Native Title Act 1993 (Cth) (‘the Act’). The Minute is supported by the parties’ joint submissions and a statement of agreed facts that were filed on the following day by the Solicitor for the Northern Territory.

Section 87 of the native title act

4    The provisions of s 87 of the Act allow the Court to make a determination of native title by consent over an area of land and waters covered by a native title determination application without holding a hearing where certain conditions are met. These conditions are:

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

2.    the parties have reached agreement on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));

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

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

5.    it appears to the Court to be appropriate to make the order sought (ss 87(1) and 87(2)).

The application of s 87 to this application

5    In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343, I canvassed the authorities that identify the factors that the Court will routinely have regard to in determining whether it is appropriate to make a determination in terms of the parties’ agreement: at [5]–[13]. Beyond setting out the concluding summary, it is not necessary for me to repeat that process here. That summary is as follows (at [14]):

It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation; whether the terms of the proposed order are unambiguous and clear; and whether the agreement has been preceded by a mediation process.

6    The conditions required by s 87 have been satisfied in this case. In particular:

1.    the period specified in the notice under s 66 ended on 7 June 2001;

2.    the parties have reached agreement on the terms of order;

3.    the Minute of Proposed Consent Determination filed on 14 June 2011 records those agreed terms;

4.    an order consistent with the terms of the Minute would be within the power of the Court because:

4.1    the application is valid and made in accordance with s 61 of the Act;

4.2    the application is for a determination of native title over an area for which there is no approved determination of native title (s 13(1)(a));

4.3    the terms of the Minute comply with ss 94A and 225 of the Act.

7    I also note that:

7.1    the Northern Territory has obtained searches of land tenure and mining and other relevant interests to determine the extent of ‘other interests’ within the proposed Determination area; and

7.2    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 proposed Determination area which would otherwise require orders to be made under s 67(1) of the Act.

8    Finally, it is appropriate that the Court make the orders sought, for the following reasons:

8.1    each of the parties to the proceeding is legally represented;

8.2    the Northern Territory, acting on behalf of the community generally, has played an active role in the negotiation of the consent determination. The Northern Territory, having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances; and

8.3    based on this and the terms of the proposed order, it is apparent that there is a free and informed agreement between the parties.

nomination of a prescribed body corporate

9    The orders proposed by the parties include orders that native title is not to be held on trust and that an Aboriginal corporation is to be nominated 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) of the Act and to perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate. Section 55 of the Act requires the Court, either at the time of making a determination, or as soon as practicable after it, to make the determinations required by ss 56 and 57 of the Act. In this instance, as native title is not to be held on trust, no determination under s 56 is necessary.

10    The nomination of a prescribed body corporate and its performance of the functions outlined in the Act is an important step in giving practical effect to a determination of native title. The functions required of any prescribed body corporate are not to be undertaken lightly and so it is important that the corporation that is to be the prescribed body corporate understands the nature of its responsibilities and functions and has the human and other resources necessary to carry them out.

11    Any extensive delay in the nomination of a prescribed body corporate is undesirable. The Court expects that where orders of the type sought are made, the steps necessary to nominate a prescribed body corporate will be undertaken in a timely manner and certainly within the 12 month period specified in the orders.

conclusion

12    The co-operative approach of the parties and their legal practitioners has culminated in today’s consent determination hearing, which, for the members of the Mirtartu, Warupunju, Arrawajin and Tijampara landholding groups, is one of celebration and recognition. Recognition of an ancient connection with the land to the fullest extent possible under the laws of Australia is no insignificant matter. The rights and interests that the Applicants have always exercised and the knowledge they continue to pass on to their young people are today recognised by the Australian people through these orders.

Associate:

Dated:    14 July 2011