FEDERAL COURT OF AUSTRALIA

Roberts on behalf of the Najig and the Guyanggan Nganawirdbird Groups v Northern Territory of Australia (No 3) [2012] FCA 255

THE COURT NOTES THAT:

A.    On 2 January 2001 the Applicant lodged a native title determination application over land and waters comprising former Crown Lease Term 1045 in the Mataranka Locality which was amended with leave of the Court on 9 April 2001 and again 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 s 87(1)(a)(i) and 87(1)(b) of the Native Title Act (Cth) (“Act”) the parties have filed with the Court their agreement in writing setting out the terms of the Agreement reached (“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 no native title exists in relation to the Determination Area as provided by the Determination.

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

BEING SATISFIED that a determination that no native title exists 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 s 87 of the Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination that no native title exists in terms of the determination set out below.

2.    There be no order as to costs.

THE COURT DETERMINES THAT:

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

2.    Native title does not exist in any part of the Determination Area.

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

Schedule A

Determination Area

The Determination Area comprises the land and waters subject to Crown Lease Perpetual 1822 (CUFT 682/626) namely Northern Territory Portions 3960, 4076 and 4077 as depicted on the map in Schedule B.

Schedule B

Determination Area

REASONS FOR JUDGMENT

1    The further amended application, the subject of this proceeding, sought on behalf of the Najig Group and the Guyanggan Nganawirdbird Group a determination of native title rights and interests under the Native Title Act 1993 (Cth) in relation to land and waters comprising former Crown Lease Term 1045 (“CLT 1045”) in the Mataranka Locality.

2    The Applicant and the Respondents (“Parties”) have reached an agreement for the making of consent orders for a determination that native title does not exist over the land and waters covered by the Application (“Determination Area”) pursuant to s 87 of the Native Title Act (Cth) (“Act”).

3    The Applicant has filed the following documents:

(a)    Minute of Proposed Orders and Determination of Native Title by Consent dated 16 March 2012 which has been signed by the Parties (“Minute”);

(b)    Statement of Joint Agreed Facts of the Applicant and the First Respondent in Support of the Minute dated 16 March 2012; and

(c)    Joint Submissions of the Parties in Support of the Minute.

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].

The Application of s 87 to the Application

6    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 2 July 2002 (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)).

7    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 that no native title exists in relation to the Determination Area on the basis that the conversion of CLT 1045 to Crown Lease Perpetual 1822 pursuant to a s 24ID(3)(a) notice under the Act dated 25 September 2000 is a pre-existing rights based act which wholly extinguished any extant native title rights and interests in the Determination Area (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.

Documents Filed

8    I would note in relation to the assessment process that 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 and Nadia Ronay, 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.

9    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.

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

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

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

(c)    the Amended Application on 13 January 2011.

11    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 would hold the claimed native title rights and interests in the Determination Area. The Second Respondent did not dispute the claim of the Applicant as to which persons would hold the claimed native title rights and interests in the Determination Area.

12    In relation to the issue of extinguishment, the First Respondent filed an “Extinguishing Tenure and Public Works Table” and supporting documentation which asserted extinguishment of native title in the Determination Area based upon the surrender of CLT 1045 and the grant of Crown Lease Perpetual 1822 (“CLP 1822”) to the Second Respondent on 13 June 2001 as a pre-existing rights based act pursuant to s 24IB(b) of the Act.

13    After the exchange of contentions and subsequent correspondence on the extinguishment issue, the parties reached agreement that the grant of CLP 1822 was a pre-existing rights based act which wholly extinguished native title over the Determination Area.

CONCLUSION

14    Having noted the matters referred to in the Minute and having regard to the joint submissions of the parties, it is appropriate that 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:    20 March 2012