FEDERAL COURT OF AUSTRALIA

Roberts on behalf of the Najig and the Guyanggan Nganawirdbird Groups v Northern Territory of Australia [2012] FCA 223

THE COURT NOTES THAT:

A.    On 20 August 2002 the Applicant lodged a native title application over the land and waters within and surrounding the Town of Mataranka which was amended with the leave of the Court on 16 March 2011 (“Application”).

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

C.    Pursuant to section 87(1)(a)(i) and 87(1)(b) of the Native Title Act (Cth) (“Act”) the Parties have filed with this Court their agreement in writing setting out the terms of the agreement reached (“Determination”). The external boundaries of the area subject to the Determination are described in Schedule A of the Determination and depicted on Map 3 of 3 in Schedule B of 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 making 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, be recognised as the native title holders for the Determination Area as provided by the Determination.

F.    The Parties request that the Court hear and determine this proceeding in accordance with their agreement.

BEING SATISFIED that a determination of native title in the terms of 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 section 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 section 57(2) of the Act;

(b)    to perform the functions outlined in section 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; and

(b)    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 hereto and depicted on Maps 1-3 comprising Schedule B (“the Determination Area”).

2.    Native title exists in those parts of the Determination Area identified in Schedule C, being made up of:

(a)    the areas of land and waters to which section 47B of the Act applies, and more particularly described in item 1(a) of Schedule C (“the exclusive areas”);

(b)    the remaining areas of land and waters, being the areas more particularly described in items 1(b) and (c) of Schedule C (“the non-exclusive areas”).

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 part of two estates, which are held respectively by the members of the following estate groups:

(a)     the Najig group;

(b)    the Guyanggan Nganawirdbird 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; and

(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.    In relation to the exclusive areas, the native title rights and interests 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, possession, occupation, use and enjoyment to the exclusion of all others.

9.    In relation to the non-exclusive areas (to the extent particularised in items 1(b) and (c) of Schedule C), 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 areas 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;

(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 non-exclusive areas to the exclusion of all others.

10.    In relation to the non-exclusive areas, 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 areas 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;

(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 non-exclusive areas to the exclusion of all others.

Other interests in the determination area

11.    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 Lot 50, Town of Mataranka, the interests of Territory Housing, Department of Housing, Local Government and Sport pursuant to the freehold title granted to the former NT Housing Commission on 3 June 1987;

(b)    In relation to NT Portions 3858 and 3859, the interests of the Mataranka Aboriginal Land Trust under its freehold title granted on 5 December 1991 pursuant to the Aboriginal Land Rights (Northern Territory) Act (Cth);

(c)    In relation to part NT Portion 2255, the interests of the Northern Territory Land Corporation under Crown Lease Perpetual 197;

(d)    In relation to part NT Portion 3069, the interests of the Conservation Land Corporation under Crown Lease Perpetual 600;

(e)    In relation to NT Portion 907 and part NT Portion 3069:

(i)    The interests of the Parks and Wildlife Commission of the Northern Territory pursuant to its powers of management and control of this area under the Territory Parks and Wildlife Conservation Act (NT) (and subsidiary legislation and including under any Plan of Management in force in relation to this area from time to time) and the Parks and Wildlife Commission Act (NT) including interests in any buildings, works or other structures constructed or established by the Commission within these areas; and

(ii)    The interests of members of the public arising from rights of access to and use of these areas as a national park, subject to any statutory limitations upon these rights including those under the Northern Territory Aboriginal Sacred Sites Act;

(f)    In relation to NT Portion 4092, valid rights of use as a stock route and for the passage of travelling stock;

(g)    The rights and interests of Telstra Corporation Limited:

(i)    as the owner or operator of telecommunications facilities installed 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 telecommunication facilities; and

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

(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; and

(iv)    under any lease, license, access agreement or easement relating to its telecommunications facilities in the Determination Area;

(h)    In relation to part NT Portion 2255, the rights and interests of APT Pipelines (NT) Pty Ltd:

(i)    as the beneficiary of the rights and interests under an energy supply easement granted to the Northern Territory of Australia and registered on 17 August 1987 (registered dealing number 189874) for the purpose of the construction, operation and maintenance of the Amadeus Basin to Darwin gas pipeline and related infrastructure;

(ii)    as the holder of Pipeline Licence No. 4 granted on 13 December 1985 under the Energy Pipelines Act (NT) in connection with the Amadeus Basin to Darwin gas pipeline as depicted in Schedule E; and

(iii)    as the owner of a lateral gas pipeline extending from the Amadeus Basin to Darwin gas pipeline to NT Portion 3337.

(i)    The following interests granted under the Mining Act (NT) depicted in Schedule E:

(i)    Mineral Claim Northern (“MCN”) 675;

(ii)    MCN 684;

(iii)    MCN 2553; and

(iv)    Exploration Licence (“EL”) 26115.

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

(k)    In relation to NT Portion 5228, the interests of members of the public arising from rights of access to and use of the beds, banks and waters of Roper Creek;

(l)    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; and

(m)    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.

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

Relationship between rights and interests

13.    In relation to Lot 50 Town of Mataranka, the relationship between the native title rights and interests referred to in paragraphs 9 and 10 and the interests of Territory Housing referred to in paragraph 11(a) is that the freehold title over this lot is:

(a)     wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests;

(b)    the native title continues to exist but has no effect in relation to the freehold title;

(c)    if the freehold title or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect;

(d)    if the freehold title or its effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

14.    In relation to NT Portions 3858 and 3859, the relationship between the native title rights and interests referred to in paragraph 8 and the interests of the Mataranka Aboriginal Land Trust referred to in paragraph 11(b) is that the freehold title over these parcels is:

(a)     wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests;

(b)    the native title continues to exist but has no effect in relation to the freehold title;

(c)    if the freehold title or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect;

(d)    if the freehold title or its effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

Other matters

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

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

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

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

in the Determination Area.

16.    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.

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

Schedule A

Determination Area

The outer Determination Area boundary comprises the boundary of the Mataranka Community Government Scheme notified in NT Government Gazette (NTGG) No. S22 on 23 May 1985 and subsequently amended by NTGG No. S23 on 26 April 1988 and NTGG No. G50 on 18 December 1991.

The Determination Area comprises the following areas of land:

(a)    Lots 1, 2, 5, 9, 16, 17, 18, 19, 20, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 42, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 67, 68, 69, 70, 74, 75, 76, 77, 78, 79, 80, 81, 83, 84, 85, 88, 89, 90, 91, 92, 93, 94, 95, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 118, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 136, 137, 138, 140, 141, 143, 144, 145, 146, 147 within the Town of Mataranka;

(b)    Northern Territory Portions 270, 638, 907, 922, 983, 1371, 1435, 2146, 2631, 2646, 2927, 3337, 3652, 3653, 3670, 3671, 3858, 3859, 4092, 4480, 4705, 4706, 5228, 5622, 6233, 6245, 6266, 6280, 6282, 6283, 6402, 6403;

(c)    Part NT Portions 2255 and 3069 as depicted on Map 3 of Schedule B; and

(d)    Public roads within the boundary of the Mataranka Community Government Scheme as depicted on Maps 1-3 of Schedule B.

Schedule B

Determination Area

Schedule C

Areas where native title exists

The exclusive areas

Item 1(a)

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

(A)    The following lots within the Town of Mataranka:

(i)    51;

(ii)    52;

(iii)    53;

(iv)    54;    

(v)    55;

(vi)    56;

(vii)    57;

(viii)    58;

(ix)    59;

(x)    60;

(xi)    61;

(xii)    62;

(xiii)    63;

(xiv)    64;

(xv)    70;

(xvi)    95;

(xvii)    116;

(xviii)    123;

(xix)    124;

(xx)    125;

(xxi)    126;

(xxii)    127;

(xxiii)    128;

(xxiv)    129;

(xxv)    130;

(xxvi)    132;

(xxvii)    133;

(xxviii)    134; and

(xxix)    141.

(B)    The following Northern Territory Portions:

(i)    3858; and

(ii)    3859.

The non-exclusive areas

Item 1(b)

The areas of land and waters in respect of which all of the native title rights in clauses 9 and 10 apply:

(A)    The following lots within the Town of Mataranka:

(i)    49;

(ii)    50; and

(iii)    137.

(B)    The following NT Portions:

(i)    907;

(ii)    part 2255 as depicted on Map 3 in Schedule B;

(iii)    part 3069 as depicted on Map 3 in Schedule B;

(iv)    part 4092 (excluding Martin Road and proposed NT Portion 4074) as depicted on Map 2 in Schedule B; and

(v)    5228 (wholly comprised of part of the bed and banks of Roper Creek).

Item 1(c)    

The areas of land and waters in respect of which only the native title rights in clauses 8(a), (b), (c) (excluding the right to take and use ochre), (d), (g), (i), (j), and (k) and 9(a), (b), (c) (excluding the right to take and use ochre), (d), and (g) apply:

(i)    Lot 75, Town of Mataranka (Mataranka Cemetery); and

(ii)    NT Portion 270 (Elsey Cemetery).

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.    Lots 1, 2, 5, 9, 16, 17, 18, 19, 20, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 42, 45, 46, 47, 48, 67, 68, 69, 74, 76, 77, 78, 79, 80, 81, 83, 84, 85, 88, 89, 90, 91, 92, 93, 94, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 118, 120, 121, 122, 131, 136, 138, 140, 143, 144, 145, 146, and 147 Town of Mataranka;

2.    Northern Territory Portions 638, 922, 983, 1371, 1435, 2146, 2631, 2646, 2927, 3337, 3652, 3653, 3670, 3671, 4480, 4705, 4706, 5622, 6233, 6245, 6266, 6280, 6282, 6283, 6402, and 6403;

3.    The following roads including the specified adjacent land or waters as defined in section 251D of the Act:

(a)    Stuart Highway (also known in part as “Roper Terrace”) and road reserve of varying widths through the Determination Area as shown on Maps 1-3 in Schedule B, including those parts of Lots 129 and 130 depicted on Map 2 in Schedule B which are coloured as “Extinguished (Road by agreement)”;

(b)    Roper Highway and road reserve comprising 75m either side of the centreline;

(c)    Mataranka Homestead Road including varying road reserve and areas depicted on Map 2 in Schedule B which are coloured as “Extinguished (Road by agreement)”(total width of road corridor is 100m);

(d)    that part of John Hauser Drive (approximately 50m) which falls within the Determination Area and road reserve comprising 50m either side of the centreline;

(e)    that part of Bitter Springs Road which falls within the Determination Area as depicted in Map 3 (insert G) in Schedule B and coloured as “Extinguished (Road by agreement)” and road reserve comprising 50m either side of the centreline;

(f)    the Showground Race Track Access, as depicted on Map 1 in Schedule B and coloured as “Extinguished (Road by agreement)” and adjacent land or waters 20m either side of the centreline;

(g)    Martin Road and varying road reserve, including those parts of NT Portion 4092 depicted on Maps 2 and 3 in Schedule B extending from the north east boundary of NT Portion 4092 to the intersection with Roper Terrace which are coloured as “Extinguished (Road by agreement)”;

(h)    Warloch Street (including southern extension providing access to the Airstrip on Lot 121) and road reserve as depicted on Map 1 in Schedule B;

(i)    Conway Road and road reserve as depicted on Map 2 in Schedule B;

(j)    Carew Road and road reserve as depicted on Map 2 in Schedule B;

(k)    Elsey Street and road reserve as depicted on Map 1 in Schedule B;

(l)    Stirling Street and road reserve as depicted on Map 1 in Schedule B;

(m)    Gunn Street and road reserve as depicted on Map 1 in Schedule B;

(n)    Beswick Street and road reserve as depicted on Map 1 in Schedule B;

(o)    unnamed road/laneway south of Roper Terrace and adjacent to Lots 68 and 67, Town of Mataranka as depicted on Map 1 in Schedule B;

(p)    other unnamed roads/laneways south of Roper Terrace (including the former laneway comprising part of lots 49-56 Mataranka) as depicted on Map 1 in Schedule B which are also depicted on Northern Territory Survey Plan “OP 1001”;

(q)    unnamed access roads identified as “Road A”, “Road B”, “Road C” and “Road D” on Map 3 in Schedule B and road reserve of 10.8m either side of the centreline depicted on Northern Territory Survey Plan “OP 1024”;

(r)    unnamed access road identified as “Road E” on Map 3 in Schedule B and road reserve of 10.8m either side of the centreline depicted on Northern Territory Survey Plans “OP 1023”, “OP 1400”, “S90/191A” and “S90/191B”.

4.    The land or waters comprising parts of Lots upon, across or through which the following electricity, telecommunications, water or other infrastructure lies including the specified adjacent land or waters as defined in section 251D of the Act as depicted on Maps 2 and 3 in Schedule B:

(a)    Lot 75:

(i)    Overland Telegraph Line and adjacent land or waters of 10m either side;

(b)    Lot 124:

(i)    22kv overhead power line to west of Stuart Highway and adjacent land or waters of 10m either side;

(ii)    access road to Lot 136 being 10m wide and 20m long;

(c)    Lot 125:

(i)    Overland Telegraph Line and adjacent land or waters of 10m either side;

(ii)    22kv overhead power line and adjacent land or waters of 10m either side;

(d)    Lot 127:

(i)    Overland Telegraph Line and adjacent land or waters of 10m either side;

(e)    Lot 129:

(i)    Overland Telegraph Line and adjacent land or waters of 10m either side;

(ii)    access road 10m wide from Roper Terrace/Stuart Highway to boundary of Lot 84;

(iii)    22 kv overhead power line and adjacent land or waters of 10m either side;

(f)    Lot 130:

(i)    100mm water main and adjacent land or waters of 1.5m either side;

(ii)    22kv power line and adjacent land or waters of 10m either side.

5.    The land or waters comprising parts of NT Portions upon, across or through which the following electricity, telecommunications, water or other infrastructure lies including the specified adjacent land or waters as defined in section 251D of the Act, as depicted (where possible) on Maps 2 and 3 in Schedule B:

(a)    NT Portion 270: Gateway arch to cemetery and reasonable adjacent area;

(b)    NT Portion 907:

(i)    stonework platforms, walls and stabilisation works of thermal pool area;

(ii)    signs; and

(iii)    pedestrian bridge, steps and that part of walking track associated with the bridge as comprise adjacent land or waters within the meaning of section 251D of the Act;

(c)    NT Portion 2255:

(i)    the areas comprising former Agricultural Leases 267, 296, 383, 357 and 358; and

(ii)    Overland Telegraph Line and adjacent land or waters of 10m either side;

(d)    NT Portion 3069:

(i)    Stevies Hole amenities and facilities, including toilet block, pedestrian bridges and those parts of associated walking tracks as comprise adjacent land or waters within the meaning of section 251D of the Act;

(e)    NT Portion 3858:

(i)    22kv power line on southern boundary of portion and adjacent land or waters of 10m either side;

(f)    NT Portion 3859:

(i)    22kv power line entering western corner of the parcel from Martin Road and adjacent land or waters of 10m either side;

(g)    NT Portion 4092:

(i)    Mataranka Trucking Yards and adjacent land or waters being all that land comprising proposed NT Portion 4074 (excluding NT Portion 983 to the extent it falls within the proposed portion and Martin Road).

6.    Those parts of the Determination Area not identified in paragraphs 3, 4 and 5 of this Schedule covered by public works (including adjacent land or waters as defined in section 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.

Schedule E

Map of mining and petroleum interests within the Determination Area

REASONS FOR JUDGMENT

1    It is almost a decade since this application was filed. That it has taken this long to be finalised is, in some measure, a matter for regret. What is not a matter for regret, though, is that such applications are now being dealt with in the Northern Territory under procedures which facilitate the speedy resolution of, and recognition of, native title claims.

2    The Further Amended Application the subject of this proceeding seeks, on behalf of the Najig Group and the Guyanggan Naganawirdbird Group, a determination of native title rights and interests under the Native Title Act 1993 (Cth) in relation to land and waters located within the municipal boundary of the Municipality of Mataranka. The actual claim area is described appropriately in Schedule B to the Further Amended Application and is depicted on a map at Attachment A to that application.

3    The orders presently sought under s 87 of the Act are in consequence of a consent agreement reached. The Applicant has filed the following documents between the parties:

(i)    A Minute of Proposed Orders and Determination of Native Title by consent which have been signed by the parties;

(ii)    A signed Statement of Joint Agreed Facts of the Applicant and the First Respondent in Support of the Minute of Proposed Orders and Determination of Native Title by Consent; and

(iii)    Signed Joint Submissions of the Applicant and the First Respondent in Support of the Minute of Proposed Consent Determination.

Section 87 of the Act

4    The Court’s focus in considering whether the orders sought by the parties are appropriate to be made, is upon the agreement made by them. As was said by North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]:

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

In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 15 FCR 109; [2001] FCA 1229.

5    It is, in other words, unnecessary for me to make my own inquiry as to the merits of the claims made in the application in order to be satisfied that the orders sought are supportable and in accordance with the law: see Cox on behalf of the Yungngara People v State of Western Australia [2007] FCA 588 at [3]; Wavehill on behalf of the Ngapurrpinkakujarra Group v Northern Territory of Australia [2011] FCA 584 at [10].

6    This is not to say that the Court will refrain from looking at the evidence if, in the circumstances, it feels the need to satisfy itself that the parties, but particularly, the State or Territory on behalf of its community generally, are acting in good faith and rationally: see Munn on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [30]. And it is the case that the circumstances of the individual case may well suggest particular matters about which the Court will need to be satisfied and which will require it to receive evidence or to be provided with “appropriate assurances”: see generally Munn at [24]-[33].

The Application of s 87 to the Application

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

(i)    the period specified in the notice given under s 66 ended on 4 August 2004 (s 87(1)), and there was no requirement to notify the Amended Application filed on 13 January 2011 because the amendments did not result in any change to the land or waters covered by the Application (s 66A(1));

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

(iii)    the Parties have recorded their agreement in the Minute (s 87(1)(b));

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

    (a)    the Application, as amended with the leave of the Court on 16 March 2011, is valid and was made in accordance with s 61 of the Act;

    (b)    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));

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

8    It is appropriate that the Court make the orders sought because:

(i)    all the Parties are legally represented;

(ii)    the Northern Territory as First Respondent obtained searches of land and mining tenure and other relevant interests to determine the extent of “other interests” within the proposed Determination Area and made those available to the Parties;

(iii)    the Parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described in paragraph 11, and Schedules C, D and E of the Minute (s 225(c));

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

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

9    I would note in relation to the territory’s assessment process that, in relation to the “connection requirement” of s 223(1)(c) of the Act, the Applicant filed a “Report on Native Title Interests”, “Genealogies”, and “Notice of Native Title Rights and Interests” (“Connection Material”). The Connection Material was prepared by Robert Graham, Nadia Ronay and Samantha Ebsworth, anthropologists employed by the Northern Land Council and tasked to address, on behalf of the Applicant, the Northern Territory’s Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009.

10    The Connection Material was considered by the First Respondent, which sought advice about the Connection Material (and the additional material referred to below) from consultant anthropologist, Emeritus Professor Basil Sansom. The First Respondent raised various contentions about the Connection Material with the Applicant.

11    In response, the Applicant filed the following additional material:

(i)    “Revised Genealogies” on 10 June 2010;

(ii)    the “Applicant’s Response to the Respondent’s Contentions on the Applicant’s Report on Native Title Interests” on 16 July 2010; and

(iii)    the Amended Application on 16 March 2011.

12    Ultimately, the Applicant and the First Respondent reached agreement that the native title claim group named in Schedule A of the amended Application and in the Connection Material (including the additional material) are the persons who hold the claimed native title rights and interests in the Determination Area. The Second to Eighth Respondents do not dispute the claim of the Applicant as to which persons hold the claimed native title rights and interests in the Determination Area.

13    In relation to issues of extinguishment of native title, I note that the Territory filed an “Extinguishing Tenure and Public Works Table” and supporting documentation which contained an analysis of the extinguishment of native title in the Determination Area based upon the grant of tenure and the construction or establishment of public works.

14    After the exchange of contentions, the Applicant and representatives of the Territory subsequently met and exchanged correspondence in relation to their various contentions on extinguishment on a number of occasions. They reached agreement as to those parts of the Determination Area in which native title does, and does not, exist and, in respect of those areas where it does exist, as to the nature and extent of the native title rights and interests so subsisting.

15    The Parties agree that the pre-conditions to the application of ss 47A and 47B of the Act have been met in relation to the “exclusive areas” identified in the Minute, with the result that any extinguishment of native title by the creation of any prior interest in relation to those areas must be disregarded in accordance with those provisions.

16    The Minute reflects that native title rights and interests in the “exclusive areas” comprise possession, occupation, use and enjoyment to the exclusion of all others, and that the non-extinguishment principle applies to the areas the subject of the grant to the Mataranka Aboriginal Land Trust pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

17    Finally I would note that for the purposes of s 56 of the Act the native title is not to be held on trust and that the consent orders provide appropriately for a prescribed body corporate to be nominated for the purposes of s 57(2) and (3) of the Act.

Conclusion

18    It is entirely appropriate that (i) having noted the matters referred to in the Minute; and (ii) being satisfied that the proposed determination is within the power of the Court, I make the orders and the determination pursuant to s 87 of the Act that have been agreed by the parties and which are contained in the Minute signed by them.

Associate:    

Dated:    21 March 2012