FEDERAL COURT OF AUSTRALIA
Lynch on behalf of the members of the Alherramp/Rrweltyapet, Ilewerr, Mamp/Arrwek, Tywerl, Arrangkey, Anentyerr/Anenkerr and Ntyerlkem/Urapentye Estate Groups v Northern Territory of Australia [2013] FCA 636
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT NOTES THAT:
A. The Applicant in this proceeding has 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 (“the determination”).
B. The Applicant and the Northern Territory of Australia (“the parties”) have reached agreement in writing 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 and depicted on the map at Schedule B of the determination.
C. Pursuant to s 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) (“the Act”) the parties have filed their agreement in this Court.
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 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 of native title in terms of the determination set out below.
2. The native title is not to be held on trust.
3. Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation 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. The parties have liberty to apply for the following purposes:
(a) 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;
(b) 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
(c) to establish whether any pastoral improvements referred to in Schedule C of the determination have been constructed unlawfully.
5. There be no order as to costs.
THE COURT DETERMINES THAT:
The determination area
1. The determination area comprises NT Portions 747 and 748 and part of NT Portion 5165 being the land and waters more particularly described in Schedule A and depicted on the map comprising 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 seven estate areas associated with the Alherramp/Rrweltyapet, Ilewerr, Mamp/Arrwek, Tywerl, Arrangkey, Anentyerr/Anenkerr and Ntyerlkem/Urapentye estate groups.
5. The persons who hold the common or group rights comprising the native title are the Aboriginal persons who are:
(a) members of one or more of the estate groups referred to in paragraph 4 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 one or more of the estate groups referred to in paragraph 4 by senior members of a landholding group, referred to in subparagraph (a), by virtue 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 water on or in the land, except water captured by the holders of Perpetual Pastoral Leases 1177 and 1178;
(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 to be present on the land, the right to privacy in the exercise and enjoyment of those activities;
(i) the right to speak for and 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 sub-paragraphs 6(c), (d), (e) and (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 the other interests in the determination area are:
(a) in relation to NT Portion 747 – the interest of the pastoral lease holder under Perpetual Pastoral Lease No 1178;
(b) in relation to NT Portion 748 – the interest of pastoral lease holder under Perpetual Pastoral Lease No 1177;
(c) in relation to NT Portion 5165 – valid rights of use for the passage of travelling stock;
(d) the interest of the Northern Territory of Australia under energy supply easement registered dealing no. 200948;
(e) the rights and interests of APT Pipelines (NT) Pty Ltd:
(i) as the beneficiary of the rights and interests under energy supply easement, registered dealing no. 200948 granted to the Northern Territory of Australia for the purposes of the construction, operation and maintenance of the Amadeus Basin to Darwin gas pipeline and infrastructure; and
(ii) as the holder of Pipeline Licence No. 4 granted under the Energy Pipelines Act (NT).
(f) In relation to NT Portion 748, the following interests granted under the Mineral Titles Act 2010 (NT):
(i) Exploration Licence (EL) 27927 granted on 1 November 2010;
(ii) EL 29205 granted on 4 July 2012;
(iii) EL 29221 granted on 14 August 2012;
(iv) EL 29230 granted on 8 August 2012;
(v) EL 29227 granted on 27 November 2012;
(vi) EL 28083 granted on 31 January 2011;
(vii) EL 28492 granted on 28 July 2011;
(viii) EL 28473 granted on 5 October 2011;
(ix) EL 28498 granted on 12 August 2011; and
(x) EL 24548 granted on 1 December 2005;
(g) In relation to NT Portion 747, the following interests granted under the Mineral Titles Act 2010 (NT):
(i) EL 244548 granted on 1 December 2005;
(ii) EL 24451 granted on 6 February 2006;
(iii) EL 28945 granted on 5 March 2012;
(iv) EL 24606 granted on 28 December 2005;
(v) EL 24246 granted on 11 October 2004;
(vi) EL 28964 granted on 26 July 2012;
(vii) EL 28965 granted on 26 July 2012; and
(viii) EL 28967 granted on 3 July 2012.
(h) in relation to NT Portions 747 and 748 – the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases set out in s 38(2) to (6) of the Pastoral Land Act (NT);
(i) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act (NT);
(j) 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;
(k) 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
11. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 10, the other rights and interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over, but do not extinguish, the native title rights and interests.
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 5 of the Atomic Energy Act 1953 (Cth) and s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth)).
13. In this determination the term:
(a) “natural resources” means:
(i) animals ferae naturae, birds, fish and plants, including timber, wax, resin and gum; and
(ii) surface soils, clays, stone, rocks and ochre,
but does not include minerals, petroleum and prescribed substances;
(b) “natural waters” includes springs and rockholes.
14. Unless the contrary intention appears, a word or expression used in the Act has the same meaning in this determination as it has in the Act.
Schedule A
1. The determination area comprises the following areas of land:
(a) NT Portion 747 comprising an area of 3,146 square kilometres held under Perpetual Pastoral Lease No. 1178;
(b) NT Portion 748 comprising an area of 2,278 square kilometres held under Perpetual Pastoral Lease No. 1177;
(c) That part of NT Portion 5165 (which comprises an area of 91 square kilometres and is part of the North-West Stock Route) not contained within the Tanami Road.
2. The following areas within the external boundaries of the determination area are not included in the determination area:
(a) NT Portion 3882 comprising an area of 149.3 hectares located within the boundaries of NT Portion 747 held for an estate in fee simple by Kumanji Pty Ltd (ACN 098 097 002) as trustee for the Counterfeit Superannuation Fund.
(b) NT Portion 3971 comprising an area of 5,620 square metres located within the boundaries of NT Portion 3882 held for an estate in fee simple by Telstra Corporation Limited (ACN 051 775 556) of GPO Box 1966, Adelaide SA 5001.
(c) NT Portion 4069 comprising an area of 508 hectares located within the boundaries of NT Portion 748 held for an estate in fee simple by Laramba Community Incorporated as an Aboriginal Community Living Area.
(d) A road 100 metres wide which traverses the north eastern corner of NT Portion 747 from the boundary with Aileron Station (NT Portion 703) in the east to the Laramba Community (NT Portion 4069) located within the boundaries of NT Portion 748.
(e) A road 100 metres wide (Tanami Road) which traverses NT Portion 747 from the boundary with Narwietooma Station (NT Portion 727) in the south to the boundary with the Ngalurrtju Aboriginal Land Trust (NT Portion 3271) in the north western corner.
Schedule B - Map of 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 covered by public works as defined in s 253 of the Act that were constructed or established before 23 December 1996 or commenced to be constructed or established on or before that date (including land and waters within the meaning of s 251D of the Act) including:
(a) public roads including rural public roads (50 metres either side of the centre line), rural arterial roads and national highways;
(b) gravel and fill pits established to maintain the roads referred to in (a) above;
(c) government bores and associated works;
(d) transmission water pipes (adjacent area of 5 metres either side of the centre line);
(e) distribution water pipes measuring 150 millimetre diameter or less (adjacent area of 1.5 metres either side of the centre line) and/or greater than 150 millimetre diameter (adjacent area of 5 metres either side of the centre line);
(f) sewer pipes measuring 150 millimetre diameter or less (adjacent area of 1.5 metres either side of the centre line) and/or greater than 150 millimetre diameter (adjacent area of 5 metres either side of the centre line);
(g) bores, sewer pump stations, and overhead power lines.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NORTHERN TERRITORY DISTRICT REGISTRY | |
GENERAL DIVISION | NTD 4 of 2011 |
BETWEEN: | HUCKITTA LYNCH, LESLEY STAFFORD, ADRIAN DIXON NGWARRAY AND ORS ON BEHALF OF THE MEMBERS OF THE ALHERRAMP/RRWELTYAPET, ILEWERR, MAMP/ARRWEK, TYWERL, ARRANGKEY, ANENTYERR/ANENKERR AND NTYERLKEM/URAPENTYE ESTATE GROUPS Applicant
|
AND: | NORTHERN TERRITORY OF AUSTRALIA First Respondent HIRAJI PTY LTD Second Respondent
|
JUDGE: | REEVES J |
DATE: | 2 JULY 2013 |
PLACE: | LARAMBA COMMUNITY |
REASONS FOR JUDGMENT
INTRODUCTION
1 The area that is the subject of this native title determination application comprises approximately 5,600 square kilometres of land situated approximately 200 kilometres north west of Alice Springs. Since late 2002, perpetual pastoral leases (PPL 1177 and 1178) issued under the Pastoral Land Act (NT) have existed over the entire claim area. That period of a little over 10 years is recent history in the context of the claimants’ relationship with the land comprising the claim area. The claimants believe their spiritual ancestors fashioned that land a time long ago, during what is termed “Altyerr” in Anmatyerr, “Altyerre” in Arrernte or the “Dreaming” or “Dreamtime” in English. Recently, the parties, being the Applicant, the Northern Territory of Australia and Hiraji Pty Ltd, the holder of the pastoral lease, have informed the Court that they have agreed on the terms of a proposed consent determination under s 87 of the Native Title Act 1993 (Cth) (the Act).
2 As is the practice of the Court in dealing with native title claims over pastoral leases in the Northern Territory, this matter has been assigned the short title of “Napperby”: the name of the pastoral lease. While the current form of the Napperby native title claim has only been on foot for approximately 27 months, a predecessor to the current claim was filed on 12 April 2005 (the first claim). That claim appears to have been prompted by an application for an exploration licence over a part of the pastoral lease. Accordingly, the first claim only extended to the area of the pastoral lease affected by that notice.
3 On 29 March 2011, after the necessary anthropological research had been undertaken, the first claim was discontinued. That same day, the current native title determination application was filed. That application claimed all of the land within the Napperby pastoral lease and part of the North-West Stock Route, located within the boundaries of the pastoral lease. To reflect the fact that this was the second claim relating to that pastoral lease, the epitaph of “#2” was added to the short title.
4 Under the current native title determination application, the authorised Applicant is comprised of the following members:
(a) Huckitta Lynch
(b) Lesley Stafford
(c) Adrian Dixon Ngwarray.
5 The authorised Applicant represents the Alherramp/Rrweltyapet, Ilewerr, Mamp/Arrwek, Tywerl, Arrangkey, Anentyerr/Anenkerr and Ntyerlkem/Urapentye estate groups.
6 Despite the short lifespan of the current claim, negotiations for a consent determination of native title for Napperby have been progressing for some years. In February 2013, after the anthropological materials necessary to establish the native title claim group’s connection with the claim area had been provided to the Northern Territory and a conference of experts had been held, the Northern Territory accepted there was a proper basis for it to enter into final negotiations for a consent determination of native title. On 31 May 2013, the parties filed draft executed consent orders, joint agreed facts and joint submissions. In those materials, the parties requested the Court to make a determination of native title in the terms of their agreement under s 87 of the Act. On 24 June 2013, they filed that agreement in final form.
SECTION 87 OF THE ACT
7 Section 87 of the Act empowers the Court to make an order consistent with the terms of a written agreement between the parties to native title proceedings without holding a hearing in the proceedings. Before the Court can exercise that power, the conditions specified by s 87(1) must be satisfied. In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out the five conditions that the parties need to meet in order to have the Court make a consent determination of native title under s 87: see at [3]–[7]. It is convenient to briefly outline each of these requirements and consider whether they have been met in this application.
8 The first requirement is that the notice period under s 66 of the Act must have ended: s 87(1). The Napperby #2 application was notified by the Registrar on 8 July 2011. The period specified in that notice expired on 26 October 2011. The first requirement has therefore been met.
9 The second requirement is that the agreement must relate to the whole of the proceedings, part of the proceedings or a matter arising out of the proceedings: s 87(1)(a). The consent orders filed with the Court demonstrate that the agreement relates to the whole of this proceeding. This requirement has therefore been met.
10 The third requirement is that the agreement must be reduced to writing, signed by the parties and filed with the Court: s 87(1)(b). As noted above, executed consent orders have been filed with the Court. This requirement has also been satisfied.
11 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I stated (at [4]):
An order will be within the power of the Court if it is consistent with s 94A of the Act, the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination.
12 Section 94A requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the Act. Section 225 defines “determination of native title” as follows:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land and waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
(Emphasis in original.)
13 I have examined the proposed consent determination as outlined in the consent orders executed by the parties. I am satisfied that each of the matters referred to in s 225(a) to (e) of the Act (above) is appropriately articulated therein and the rights and interests so described are recognisable by the common law of Australia.
14 The history of the Napperby #2 application set out above at [1]–[6] demonstrates that the previous claim over Napperby was discontinued before it was determined. Based on the records of the National Native Title Register kept under Pt 8 of the Act, I am satisfied that no previous or subsequent determination of native title has been made over the area the subject of this proposed consent determination.
15 I am therefore satisfied that a determination in the terms sought by the parties would be within the power of the Court.
16 Finally, before the Court makes a determination consistent with the terms of the parties’ agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the Act. In Nelson, I noted (at [7]) that these words:
… have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28].
17 After canvassing the authorities relevant to the Court’s determination of this question, I identified (at [14]) the following principles:
(a) the central issue is whether there exists a free and informed agreement between the parties;
(b) in determining whether such an agreement exists, the following factors will be critical:
(i) the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title;
(ii) whether the parties have independent and competent legal representation;
(iii) whether the terms of the proposed order are unambiguous and clear; and
(iv) whether the agreement has been preceded by a mediation process.
18 In their joint submissions, the parties submitted that it was appropriate that the Court make a determination in the terms of the parties’ agreement because:
(a) each party is legally represented;
(b) the Northern Territory, acting on behalf of the community generally, has played an active role in the negotiation of the agreement;
(c) the Northern Territory has conducted a thorough assessment process, which has included an extensive review of the anthropological materials relating to connection and searches to determine the extent of any other interests that may exist within the determination area;
(d) after those negotiations and that assessment process, and having regard to the requirements of the Act, the Northern Territory is satisfied that the determination is justified in all the circumstances.
19 I have examined the executed consent order filed by the parties and I consider that its terms are unambiguous and clear.
20 Having regard to the factors I summarised in Nelson (outlined at [17] above), the parties’ joint submissions in support of the consent determination and my review of the terms of the executed order filed with the Court, I am satisfied that it is appropriate to make the proposed consent determination.
PRESCRIBED BODY CORPORATE
21 Order 2 of the proposed consent determination is to the effect that the native title is not to be held on trust. Accordingly, the need for a nomination under s 56 of the Act does not arise. In these circumstances, s 57(2) of the Act requires the Court to take certain steps to determine which prescribed body corporate is to perform the functions mentioned in s 57(3). The s 87 agreement signed by the parties seeks a determination that the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57(2) to perform the functions set out in s 57(3). That nomination is supported by the affidavit of Elly Patira affirmed 21 June 2013. Ms Patira deposes that the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation was nominated by the claim group to be their prescribed body corporate on 23 May 2013 and that the members of the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation consent to being so nominated.
22 Accordingly, the Court determines that the Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57(2) and that it is to perform the functions set out in s 57(3) of the Act.
CONCLUSION
23 In conclusion, it is important to record that one of the central objects of the Act is to resolve native title claims by negotiation and agreement. The negotiations and agreement leading to this consent determination therefore serve to advance that object. I congratulate the parties for reaching the agreement to achieve this consent determination in these proceedings.
24 Of course, native title has existed in this land, according to the traditional laws and customs of the seven estate groups, long before it was given the name Napperby. It follows that the orders that will now be made do not create native title in the claim area. Instead, by this consent determination, the Australian legal system recognises that long held and pre-existing native title.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
