FEDERAL COURT OF AUSTRALIA

Doolan on behalf of the Andado, Pmere Ulperre, New Crown and Therreyererte Family Groups v Northern Territory of Australia [2018] FCA 709

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding NTD 20 of 2014 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, the Northern Territory of Australia, the pastoralists and the fourth to sixth 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 and depicted on the map at Schedule B of the determination.

C.    Pursuant to s 87(1)(a)(i) and s 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court their agreement in writing.

D.    Pursuant to s 87 and s 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 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.    Tyatyekwenhe Aboriginal Corporation (ICN: 7888) 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 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.

5.    There be no order as to costs.

THE COURT DETERMINES THAT:

The Determination Area

1.    The Determination Area comprises NT Portions 1102, 1103, 1104, 1361, 1378, 1602, 4209, 4403, 5171, 5172, 5739 and part of NT Portion 261 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 as follows:

(a)    NT Portions 1102, 1103, 1104, 1361, 1378, 4209, 5171, 5172 and part of NT Portion 261: the native title rights and interests in paragraph 6;

(b)    NT Portion 1602, 4403 and 5739: the native title rights and interests in paragraph 6 would apply were they not wholly ineffective due to the operation of s 238 of the Act.

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 the countries associated with four family groups: Andado (Allen Family), Pmere Ulperre (Doolan (south) Family), New Crown (Doolan (west) Family) and Therreyererte (Hayes Family) (the family 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 family groups referred to in paragraph 4 by virtue of descent (including adoption) from a member of a family group through father’s father, father’s mother, mother’s father and mother’s mother;

(b)    recognised as members of one or more of the family groups referred to in paragraph 4 by senior members of a family group referred to in subparagraph (a), by virtue of the following non-descent connections to a country:

(i)    birthplace affiliation and/or conception site affiliation; and

(ii)    long-term residence in a country.

Native title rights and interests

6.    The native title rights and interests of the native title holders are the non-exclusive native title rights and interests possessed under and exercisable in accordance with the traditional laws acknowledged and traditional customs observed, 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 Lease Nos 1104 and 1132 respectively;

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

(g)    the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;

(h)    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;

(i)    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; and

(v)    teaching the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs;

(j)    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 provided that the right does not extend to making any decision that purports to control the access of such persons to the Determination Area;

(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; and

(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 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 and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose.

Other rights and interests

9.    The nature and extent of the other interests in the Determination Area are:

(a)    NT Portions 261 and 1102 ⸺ the interest of Panchek Pty Ltd and Costello Holdings NT Pty Ltd as trustees for the New Crown Property Trust under Perpetual Pastoral Lease No 1132.

(b)    NT Portions 1103, 1104 and 1361 ⸺ the interest of Panchek Pty Ltd and Costello Holdings NT Pty Ltd as trustees for the Andado Property Trust under Perpetual Pastoral Lease No 1104.

(c)    NT Portion 1378 and 4209 ⸺ the interest of the Northern Territory of Australia.

(d)    NT Portion 1602 ⸺ the interest of the Conservation Land Corporation under Special Purposes Lease 497.

(e)    NT Portion 4403 ⸺ the interest of the Irlentye Aboriginal Corporation as the holder of a fee simple estate (subject to the Irlentye Community Living Area Agreement, DI2003/004 entered in the Register of Indigenous Land Use Agreements on 30 June 2003).

(f)    NT Portions 5171 and 5172 ⸺ valid rights of use for the passage of travelling stock.

(g)    NT Portion 5739 ⸺ the interest of the Akapertatyeke Aboriginal Corporation as the holder of a fee simple estate (subject to the Akapertatyeke Community Living Area Agreement DI2003/005 entered in the Register of Indigenous Land Use Agreements on 30 June 2003).

(h)    The interests of the holders of the following mining and petroleum tenements granted pursuant to the Mineral Titles Act 2010 (NT) (or its predecessor) and the Petroleum Act 1984 (NT) respectively:

(i)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(i)    as the owner or operator of telecommunications facilities within the Determination Area;

(ii)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth), and under Sch 3 to the Telecommunications Act 1997 (Cth), including rights:

A.    to inspect land;

B.    to install and operate telecommunications facilities; and

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

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

(iv)    under any lease, licence, access agreement or easement relating to its telecommunications facilities within the Determination Area.

(j)    NT Portions 261, 1102, 1103, 1104, 1361 – the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases identified in ss 38(2) to (6) of the Pastoral Land Act 1992 (NT).

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

(l)    Rights of access by an employee, servant, agent or instrumentality of the Northern Territory of Australia, the Commonwealth of Australia or other statutory authority as required in the performance of his or her statutory duties.

(m)    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

10.    To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 in relation to NT Portions 1102, 1103, 1104, 1361, 1378, 4209, 5171, 5172 and part of NT Portion 261 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 9, 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.

11.    In relation to NT Portion 1602 the relationship between the native title rights and interests referred to in paragraph 6 and the interest of the Conservation Land Corporation referred to in paragraph 9 as the holder of Special Purposes Lease No 497 is that the non-extinguishment principle applies. The lease granted to the Corporation:

(a)    is 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 grant;

(c)    if the grant or its effects is wholly removed or otherwise wholly ceases to operate the native title rights and interests again have full effect;

(d)    if the grant or its effects is removed to an extent or otherwise ceases to operate only to an extent the native title rights and interests again have effect to that extent.

12.    In relation to NT Portion 4403 the relationship between the native title rights and interests referred to in paragraph 6 and the interest of the Irlentye Aboriginal Corporation referred to in paragraph 9 as the holder of a fee simple estate in the land as set out in the Irlentye Community Living Area Agreement, DI2003/004 entered in the Register of Indigenous Land Use Agreements on 30 June 2003 is that the non-extinguishment principle applies:

(a)    the grant of the estate in fee simple is 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 grant;

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

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

13.    In relation to NT Portion 5739 the relationship between the native title rights and interests referred to in paragraph 6 and the interest of the Akapertatyeke Aboriginal Corporation referred to in paragraph 9 as the holder of a fee simple estate in the land as set out in the Akapertatyeke Community Living Area Agreement DI2003/005 entered in the Register of Indigenous Land Use Agreements on 30 June 2003 is that the non-extinguishment principle applies:

(a)    the grant of the estate in fee simple is 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 grant;

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

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

Other matters

14.    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 1984 (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)).

15.    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.

16.    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 and waters:

(a)    NT Portion 261 comprising an area of 3,869 square kilometres held under Perpetual Pastoral Lease No 1132;

(b)    NT Portion 1102 comprising an area of 2,289 square kilometres held under Perpetual Pastoral Lease No 1132;

(c)    NT Portion 1103 comprising an area of 3,537 square kilometres 50 hectares held under Perpetual Pastoral Lease No  1104;

(d)    NT Portion 1104 comprising an area of 2,020 square kilometres held under Perpetual Pastoral Lease No 1104;

(e)    NT Portion 1361 comprising an area of 5,132 square kilometres 16 hectares held under Perpetual Pastoral Lease No 1104;

(f)    NT Portion 1378 comprising an area of 400 square metres is Crown land;

(g)    NT Portion 1602 comprising an area of 30 square kilometres 42 hectares held under Special Purposes Lease 497;

(h)    NT Portion 4209 comprising an area of 1,752 square kilometres is Crown land;

(i)    NT Portion 4403 comprising an area of 15 square kilometres 21 hectares held for an estate in fee simple by the Irlentye Aboriginal Corporation;

(j)    NT Portion 5171 comprising an area of 23 square kilometres is Crown land being part of the Goyder Stock Route;

(k)    NT Portion 5172 comprising an area of 84 square kilometres is Crown land being part of the Southern Stock Route;

(l)    NT Portion 5739 comprising an area of 96 square kilometres 2 hectares held for an estate in fee simple by the Akapertatyeke Aboriginal Corporation.

2.    The following areas within the external boundaries of the Determination Area are not included in the Determination Area:

(a)    NT Portions 2447 comprising an area of 46 square kilometres 22 hectares located within the boundaries of NT Portion 1361 and held for an estate in fee simple by Molly Clark (deceased);

(b)    NT Portion 3816 comprising an area of 25 square kilometres 58 hectares located within the boundaries of NT Portion 261 and held for an estate in fee simple by Apatula Aboriginal Land Trust;

(c)    NT Portion 3817 comprising an area of 25 square kilometres 20 hectares held for an estate in fee simple by Apatula Aboriginal Land Trust;

(d)    NT Portion 3818 comprising an area of 9 square kilometres 65 hectares 6,000 square metres held for an estate in fee simple by Apatula Aboriginal Land Trust;

(e)    NT Portion 3819 comprising an area of 75 square kilometres 62 hectares held for an estate in fee simple by Apatula Aboriginal Land Trust;

(f)    NT Portion 3895 comprising an area of 2 hectares 2,500 square metres located within NT Portion 261 and held for an estate in fee simple by the Australian & Overseas Telecommunications Corp. Ltd;

(g)    NT Portion 4517 comprising an area of 5 square kilometres, 91 hectares, 2,000 square metres located within NT Portion 261 being the corridor of the former Central Australia Railway;

(h)    The following roads:

(i)    a road 100 metres wide (Andado Station Access Road) which traverses NT Portion 261 (New Crown Station) from the boundary of NT Portion 3819 (Apatula Aboriginal Land Trust) to the boundary of NT Portion 1361 (Andado Station).

(ii)    a road 100 metres wide (Finke Township/Allambi Station Access Road) which traverses NT Portion 1361 from the boundary of NT Portion 261 (New Crown Station) to the boundary of NT Portion 2447.

(iii)    a road 100 metres wide which traverses NT Portion 261 (New Crown Station) from the boundary of NT Portion 3819 (Apatula Aboriginal Land Trust) to the South Australian border.

(iv)    a road 100 metres wide (New Crown Station Homestead/Abminga Access Road) which traverses NT Portion 261 (New Crown Station) from the Andado Station Access Road to the South Australian border.

(v)    a road 100 metres wide (Mt Dare Access Road) which traverses NT Portion 261 (New Crown Station) from the New Crown Station Homestead/Abminga Access Road to NT Portion 5739.

(vi)    a road 100 metres wide (Finke Road) which traverses NT Portion 261 from the boundary of NT Portion 3817 (Apatula Aboriginal Land Trust) to the border of NT Portion 2869 (Umbeara Station).

(vii)    a road 100 metres wide (Santa Teresa Road) which traverses NT Portion 1361 (Andado Station) from the boundary of NT Portion 2447 to the boundary of NT Portion 4070 (Pmere Nyente Aboriginal Land Trust).

(viii)    a road 100 metres wide which traverses NT Portion 1361 (Andado Station) from the boundary of NT Portion 1602 (Mac Clark (Acacia Peuce) Conservation Reserve) to the Finke Township/Allambi Station Access Road.

(ix)    a road 100 metres wide which traverses NT Portion 1361 (Andado Station) from the Finke Township/Allambi Station Access Road) to the South Australian border.

(x)    a road 100 metres wide which traverses NT Portion 5739 from the border of NT Portion 261 (New Crown Station) to the South Australian border.

Schedule B - 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.

Public works

1.    Those parts of the Determination Area 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, namely, rural public roads (50 metres either side of the centre line), rural arterial roads and national highways and associated road infrastructure;

(b)    community, pastoral access and other roads (including access roads and tracks to public works referred to in this clause) which are not otherwise public roads;

(c)    gravel and fill pits established to maintain the roads referred to in (a) and (b) above;

(d)    government bores and associated works;

(e)    river and rain gauges;

(f)    transmission water pipes (adjacent area 5 metres either side of the centreline);

(g)    distribution water pipes measuring 150 millimetres in diameter or less (adjacent area of 1.5 metres either side of the centreline) and greater than 150 millimetres in diameter (adjacent area 5 metres either side of the centreline);

(h)    sewer pipes measuring 150 millimetres in diameter or less (adjacent area 1.5 metres either side of the centreline) and greater than 150 millimetres in diameter (adjacent area 5 metres either side of the centreline);

(i)    bores, sewer pump stations and overhead power lines.

2.    In addition to the areas referred to in paragraph 1 above native title has been wholly extinguished over those parts of NT Portion 261 that were covered by the Overland Telegraph Line and the Goyder Junction Well (area covered by former Miscellaneous Lease No 58) respectively (including land and waters within the meaning of s 251D of the Act).

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for a determination of native title under the Native Title Act 1993 (Cth). The claim area covers approximately 18,848 square kilometres of land in the south-eastern region of the Northern Territory.

2    The parties join in an application for orders by consent under s 87 of the Act, for the resolution of the whole of the native title claim. Minutes of proposed orders and a draft determination of native title signed by the parties were filed on 6 April 2018.

3    The area subject to this claim (Determination Area) is described in detail in Schedule A to the proposed orders. Schedule B to the proposed determination depicts the Determination Area in a map.

4    The area comprises the estates associated with four family groups: Andado (Allen Family), Pmere Ulperre (Doolan (south) Family), New Crown (Doolan (west) Family) and Therreyererte (Hayes Family). There are six respondents to the application, the first of which is the Northern Territory of Australia.

SECTION 87 OF THE ACT

5    Section 87 of the Act empowers the Court to make a determination of native title consistent with the terms of a written agreement between the parties to the proceedings. The effect of the parties’ agreement is that it is not necessary for the Court to resolve the merits of the claim upon a contested hearing. The Court must nonetheless be satisfied that the procedural and substantive requirements of s 87 are complied with: Far West Coast Native Title Claim v South Australia (No 7) [2013] FCA 1285 at [11]. As French J observed in Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]:

A determination of native title not only binds the parties to these proceedings, it is good against the whole world. So the Court must be satisfied that the orders sought are supportable and are in accordance with the law.

6    The relevant requirements of s 87 of the Act are that:

(1)    after the end of a period specified in a notice given under s 66 of the Act, agreement is reached between the parties on the terms of an order in relation to the proceedings (s 87(1)(a)(i));

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

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

(4)    the Court considers it appropriate to make the orders sought without holding a hearing (s 87(1A)).

CONSIDERATION

7    The procedural requirements of s 87(1)(a)(i) and s 87(1)(b) have been met. The period specified in a notice given under s 66 of the Act expired on 18 February 2015 and, as I have said, there is a written agreement signed by or on behalf of the parties and filed with the Court.

The orders are within power

8    The orders sought by the parties will be within the power of the Court if there is no other determination or claim in existence in or over the Determination Area, if the rights and interests included in the proposed determination are recognisable by the common law of Australia and if the orders are consistent with s 94A of the Act.

9    I am satisfied that each of these requirements is fulfilled.

10    Section 94A of the Act requires the Court, when making a determination of native title, to set out details of the matters mentioned in s 225 of the Act. Section 225 provides:

225 Determination of native title

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 or 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.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

11    “Native title” and “native title rights and interests” are relevantly defined in s 223(1) of the Act as:

… the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

12    The proposed orders detail the area in which native title exists (Schedule A) and those items and areas within the area where native title is extinguished (Schedule C). The proposed orders otherwise:

(1)    define the group of native title holders and the criteria by which they have group membership and so comply with s 225(a) (paragraphs 4 to 6);

(2)    set out the nature and extent of the native title rights and interests in the Determination Area and the general limitations on their exercise and so comply with s 225(b) (paragraphs 6 to 8 and 14);

(3)    set out the nature and extent of other interests in the Determination Area and so comply with s 225(c) (paragraph 9);

(4)    describe the relationship between the native title rights and those other rights and so comply with s 225(d) (paragraphs 10 to 13); and

(5)    state that the native title rights and interests recognised in the Determination Area are non-exclusive and so comply with s 225(e) (paragraph 6).

It is appropriate to make the orders sought

13    Section 87 of the Act is to be exercised flexibly and with regard to the purpose for which it was enacted. As was said by North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (at [36]):

The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. 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.

14    His Honour continued (at [37]):

… when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.

15    In satisfying itself that there is a credible basis for a native title determination, a State or Territory party may rely upon significantly less material than would otherwise be necessary to justify a judicial determination of the issues: Lovett at [38]. The Court need not embark on its own inquiry of the merits of the claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox at [3]; Brown v Northern Territory of Australia [2015] FCA 1268 at [23].

16    As Reeves J said in Nelson v Northern Territory (2010) 190 FCR 344 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: Munn at [29], [39] and [40] and Lovett at [39]-[40]; whether the terms of the proposed order are unambiguous and clear: Munn at [32]; and whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42].

See also Smith v Western Australia (2000) 104 FCR 494 at [38] (Madgwick J).

17    The parties to the written agreement are competently represented.

18    The applicant has provided the Northern Territory’s representatives with the short form of an anthropologist report prepared by Petronella Vaarzon-Morel and Geoffrey Bagshaw. A summary of the report is before the Court. The Northern Territory’s representatives referred the short form report to a consultant anthropologist for peer review. The anthropologists express the opinion that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination Area. Detailed consideration is given to the responsibilities of the claimant families in relation to the each of the estate areas with which they are associated. The report concludes that the claimants still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them and that those laws and customs give them a connection to the land. The anthropologists’ report provides a proper basis for the respondent parties, particularly the Northern Territory of Australia, to consent to orders recognising the existence of native title in the Determination Area.

19    In addition, the Northern Territory of Australia has conducted appropriate searches in relation to land tenures, mining interests and other relevant interests to satisfy itself as to the extent of other interests within the Determination Area and the extent of any extinguishment of the claimants’ native title interests. Copies of those searches have been provided to all parties.

20    By conciliating this claim, the parties have advanced the objectives the Act is intended to achieve. Those objectives are stated in the preamble to the Act relevantly as follows:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

…

The people of Australia intend:

(a)    to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)    to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

…

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

21    Understood against the preamble, it is clear that s 87 of the Act is intended to provide a special procedure for the just and proper ascertainment of native title rights and interests. It provides the mechanism by which orders for the determination of native title may be agreed by conciliation and so save the parties and the Australian community the expense and delay associated with a contested trial. The subject matter of the parties’ agreement is as complex as it is important. The parties are to be congratulated for resolving the issues arising on this claim by a respectful and conciliatory process and for assisting the Court to satisfy itself that all of the conditions for the making of a consent determination are present.

22    As the preamble to the Act makes clear, it is important to recognise that, in these proceedings, native title is to be “ascertained”. The orders that are to be made do not have the effect of conferring rights or interests on any person. Rather, the effect of the determination is to recognise that the families comprising the claim group presently have interests under the traditional laws acknowledged and the traditional customs observed by them. It is the observance of those laws and customs that has given them and their ancestors a continuing connection to the land that long predates the introduction to Australia of the common law. I am satisfied that the rights and interests forming the subject of the proposed determination are recognisable by the common law and that it is appropriate to make a determination to that effect, consistent with the draft prepared by the parties.

PRESCRIBED BODY CORPORATE

23    The native title recognised by this determination is not to be held in trust.

24    The applicant have nominated the Tyatyekwenhe Aboriginal Corporation (ICN 7888) as the prescribed body corporate for the purposes of s 57(2) of the Act. There is written evidence of the consent of the corporation to become the prescribed body corporate and to perform the functions required of it under the Act: affidavit of Susan Jane Polden sworn on 7 March 2018.

Associate:

Dated:    24 May 2018