FEDERAL COURT OF AUSTRALIA

Margarula on behalf of the Mirarr People v Northern Territory of Australia [2018] FCA 1670

ORDERS

THE COURT NOTES THAT: On 24 August 2016 the Court made orders that native title in the application area had been extinguished or suppressed, and that the parties have certain liberty to apply, in the terms set out in the orders, and the time for liberty to apply was extended by orders made on 31 August 2017. To the extent those orders may be read as determining whether or not native title exists in the application area, being the subject matter of the orders below, for the avoidance of doubt, those orders are vacated pursuant to rule 39.05(e) of the Federal Court Rules 2011 (Cth) (the Rules).

THE COURT ORDERS THAT:

1.    The orders made on 24 August 2016, as varied on 31 August 2017, are vacated.

2.    There be a determination of native title in terms of the determination set out below.

3.    The native title is not to be held on trust.

4.    An Aboriginal corporation whose name is to be provided within 12 months, or such further time as the Court may allow, is to:

(a)    be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth) (the Act); and

(b)    perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.

5.    There be no order as to costs.

6.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land in relation to the items noted in the fifth column of Schedule D2 and of the works and facilities referred to in Schedule C items 2 and 3.

Note:   Settlement and entry of orders is dealt with in Part 39 of the Rules.

THE COURT DETERMINES THAT:

    The Determination Area

1.    The external boundaries of the Determination Area are described in Schedule A and depicted on Map 1 in Schedule B.

2.    Native title:

(a)    exists in the parts of the Determination Area referred to in Schedule C (the Native Title Area);

(b)    does not exist in the parts of the Determination Area referred to in Schedule D (the Extinguished Area).

The native title holders (s 225(a))

3.    The persons holding the rights comprising the native title are those Aboriginal people:

(a)    who are members of the estate groups:

(i)    Mirarr Gundjeihmi;

(ii)    Mirarr Urningangk;

(iii)    Mirarr Mengerrdji;

by virtue of descent through his or her father or father’s father or by virtue of adoption into one of the groups;

(b)    whose mother or mother’s mother is or was a member of the groups referred to in paragraph (a);

(c)    who are spouses of the persons referred to in paragraph (a);

(d)    who have connections to the area by virtue of:

(i)    being a member of a group (other than the groups referred to in paragraph (a)(ii) and (iii)), which group has an estate neighbouring the traditional estate of the Mirarr Gundjeihmi;

(ii)    being spouses of the person referred to in paragraph (d)(i);

(iii)    related spiritual affiliations or ritual authority in relation to the area.

The nature and extent of the native title (s 225(b))

4.    The native title in relation to the Native Title Area comprises:

(a)    the right to travel over, to move about and to have access to the area;

(b)    the right to hunt and to fish on the land and waters of the area for personal, domestic or non-commercial exchange or communal consumption for purposes allowed by and under the traditional laws and customs of the native title holders;

(c)    the right to gather and to use the natural resources of the area such as food, medicinal plants, wild tobacco, timber, stone and resin for personal, domestic or non-commercial exchange or communal consumption for purposes allowed by and under the traditional laws and customs of the native title holders;

(d)    the right to take and to use the natural water on the area;

(e)    the right to live, to camp and for that purpose to erect shelters and other structures on the area;

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

(g)    the right to conduct and to participate in the following activities on the area:

(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 the area that are of significance under the traditional laws and customs of the native title holders;

(h)    the right to maintain and to protect sites and places on the area that are of significance under the traditional laws and customs of the native title holders;

(i)    the right to share or exchange subsistence and other traditional resources obtained on or from the area for personal, domestic or non-commercial exchange or communal consumption for purposes allowed by and under the traditional laws and customs of the native title holders;

(j)    the right to be accompanied on to the area 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 area;

(ii)    people who have rights in relation to the area 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 area.

5.    The native title rights referred to at [4] do not confer;

(a)    possession, occupation, use and enjoyment of the Native Title Area on the native title holders to the exclusion of all others; or

(b)    any right to control access to, or use of, the Native Title Area or its resources.

Other interests (s 225(c))

6.    The other interests in relation to the Native Title Area are:

(a)    the interests of the Director of National Parks:

(i)    under the proclamation of Kakadu National Park published in the Gazette on 5 April 1979 pursuant to s 7(2) of National Parks and Wildlife Conservation Act 1975 (Cth) (the NPWC Act) continued in force by the Environmental Reform (Consequential Provisions) Act 1999 (Cth) as if declared a Commonwealth reserve under s 344 the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act);

(ii)    under Part 15 Division 4 of the EPBC Act in relation to the management of the Commonwealth reserve known as Kakadu National Park;

(iii)    as lessor under the Township Lease dated 29 June 1981 and granted pursuant to s 9(2A) of the NPWC Act;

(b)    the interests of the Jabiru Town Development Authority as lessee under the Township Lease dated 29 June 1981 and granted pursuant to s 9(2A) of the NPWC Act and continued as a usage right under s 359 of the EPBC Act;

(c)    the respective interests of Energy Resources of Australia Ltd, the Jabiru Town Development Authority, the Northern Territory and the Commonwealth in relation to the infrastructure and other works that are the subject of the trust provided for in the agreement between the Jabiru Town Development Authority and Energy Resources Australia Ltd entered into on or about 23 August 1985;

(d)    the interests of the owners or operators of the works referred to in Schedule C item 2(i)–(iii);

(e)    the interests of the holders of the sub-leases granted by the Jabiru Town Development Authority referred to in Schedule C1;

(f)    the interests of Telstra Corporation Limited in respect of the facilities referred to in Schedule C2:

(i)    as the owner or operator of the telecommunications facilities and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(ii)    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).

(g)    the rights of employees, agents or contractors of Telstra Corporation Limited to enter the area in the performance of their duties to enable access to its telecommunication facilities;

(h)    the rights of Aboriginal persons (whether or not native title holders) in relation to:

(i)    the traditional use of Commonwealth reserves under s 359A of the EPBC Act;

(ii)    the protection of sacred sites under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

(i)    rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority, as required and permitted in the performance of statutory duties;

(j)    valid or validated rights and interests granted pursuant to, or held by force or operation of, laws of the Northern Territory or the Commonwealth.

Relationship between the native title rights and the other interests (s 225(d))

7.    Except as otherwise provided by law, the relationship between the native title rights and the other interests is that:

(a)    the other interests are not inconsistent with the continued existence of the native title rights;

(b)    to the extent the other interests are inconsistent with the continued enjoyment or exercise of the native title rights, the native title rights continue to exist in their entirety, but the native title rights have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests;

(c)    the existence, enjoyment and exercise of the native title rights do not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests and the doing of the required or permitted activity prevail over the native title rights and any enjoyment or exercise of the native title rights, but do not extinguish them.

Other matters

8.    There are no native title rights or 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 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) or s 5(1) of the Atomic Energy Act 1953 (Cth);

in the Native Title Area.

9.    The native title rights are subject to and exercisable in accordance with:

(a)    the traditional laws and customs of the native title holders;

(b)    the laws of the Northern Territory and the Commonwealth.

Schedule A

External Boundaries of Determination Area: Clause 1

1.    The external boundaries of the Determination Area are generally shown as bordered in blue on Map 1 in Schedule B.

2.    The Determination Area comprises all that land and waters within the boundaries of former Northern Territory Portion 2272 delineated on Survey Plan S79/31 lodged with the Surveyor General of the Northern Territory (and noting that as surveyed Northern Territory Portion 2272 does not include Arnhem Highway).

Schedule B

Maps

Schedule B contains the following maps:

1.    Map 1 – external boundaries of Determination Area

2.    Map 2 – the part of the Determination Area where native title exists referred to in clause 2(a) and Schedule C (being the Native Title Area)

3.    Map 3 – the part of the Determination Area where native title does not exist referred to in clause 2(b) and Schedule D (being the Extinguished Area)

In the event of an inconsistency in the description of an area or thing given in the text of the determination and depicted on a map, the text of the determination prevails.

Notes to Maps 2 and 3:-

1.    Map 2 does not depict the location and extent of the works and facilities referred to in Schedule C items 2 and 3 or areas identified as part Lots in Schedule D2.

2.    Map 3 does not depict the location and extent of the public works and adjacent areas in relation to the items noted in the fifth column to Schedule D2.

The precise location and boundaries of those works, facilities, public works and adjacent areas is the subject of liberty to apply under order [6].

Schedule C

The Native Title Area: Clause 2(a)

The Native Title Area comprises the land and waters within the boundaries of former Northern Territory Portion 2272 other than the Lots and areas referred to in Schedule D, as broadly depicted on Map 2 in Schedule B and shaded green.

The Native Title Area includes:

1.    the Lots listed in Schedule C1;

2.    save to the extent (if at all) they fall within the areas described in Schedule D, the following areas, being areas affected by works that are not public works within the meaning of the Act:

(i)    the underground water line to the Kakadu National Park Headquarters;

(ii)    Lot 2321 (including the electrical terminal box, sewage manhole, and light poles);

(iii)    the Magella Creek sewage pipeline traversing east–west across Lot 2626

(iv)    Lot 2317;

3.    save to the extent (if at all) they fall within the areas described in Schedule D, the areas affected by telecommunications facilities of Telstra Corporation Limited referred to in Schedule C2;

4.    any area or Lot, or part thereof, referred to in Schedule C items 2 and 3 and the fifth column of Schedule D2 in the event that Lot or area, or part thereof, is removed from inclusion in that schedule pursuant to the liberty to apply reserved under order [6] and noted in Schedule D2.

Schedule C1

Sub-leases in the Native Title Area: Clause 6(e)

1.    The Lots listed below are covered by sub-leases that are not previous exclusive possession acts as:

(1)    Crown to Crown grants within s 23B(9C) of the Act, being the sub-leases covering the Lots noted in the column headed 23B(9C);

(2)    grants made after 23 December 1996 and thus excepted from Schedule D1, being the sub-leases covering the Lots noted in the column headed D1 Exception.

Schedule C2

Telecommunication facilities in the Native Title Area: Clause 6(f)

The Native Title Area is affected by the telecommunications facilities of Telstra Corporation Limited listed below.

Schedule D

The Extinguished Area: Clause 2(b)

Native title does not exist in relation to the following parts of the Determination Area that have been the subject of a previous exclusive possession act within the meaning of s 23B of the Act which wholly extinguished native title (being the Extinguished Area):

1.    The Lots covered by the sub-leases listed Schedule D1.

2.    The Lots and areas covered by the public works listed in Schedule D2, including specified adjacent areas under s 251D of the Act.

Schedule D1

Sub-leases that are previous exclusive possession acts

Schedule D2

Public Works that are previous exclusive possession acts

Note: in respect of an item below with an entry in the fifth column headed order [6], a party has leave to apply to have all or any part of the areas referred to in the second column of Schedule D2 further specified with greater particularity or removed from or reduced within the adjacent area referred to in those items.

SCHEDULE OF PARTIES

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    On 24 August 2016, Mansfield J published reasons for judgment in relation to whether any executive or legislative acts since European settlement had extinguished native title in the claim area (broadly, Jabiru Township and its immediate surrounds), and the extent of any such extinguishment (the extinguishment questions). His Honour’s reasons for judgment are reported as Margarula v Northern Territory of Australia [2016] FCA 1018 (Margarula No 1).

2    There is a helpful summary of the background matters in [3]-[26] of Mansfield J’s judgment:

 3.    In 1788, the “First Fleet” landed on the eastern coast of Australia and established the colony of New South Wales. In 1825, the borders of the colony of New South Wales were expanded by Letters Patent issued by the King: Letters Patent, 16 July 1825. The Jabiru land thereby fell within the colony of New South Wales. In 1836, another British colony was established in Australia, the colony of South Australia. In 1863, the boundaries of South Australia and New South Wales were altered so that the Jabiru land then formed part of South Australia: Letters Patent, 6 July 1863.

 4.    It was not until 30 January 1882, however, that the Jabiru land was for the first time put to any formal use by European colonists. In that year, two pastoral leases over the Jabiru land were granted by the Crown to Charles Brown Fisher, a prominent Melbourne-based pastoralist at that time, under the Northern Territory Land Act 1872 (SA) (1872 Act) and the Northern Territory Land Amendment Act 1876 (SA). The two leases together covered the entirety of the Jabiru land. In 1889, Mr Fisher surrendered the leases.

 5.    Then in 1892, two new pastoral leases were granted over the same land, pursuant to a new Act, the Northern Territory Crown Lands Act 1890 (SA) (1890 Act). The leases were granted to the bushman and explorer Harry Stockdale. They were cancelled two years later in 1894 for non-payment of rent. In 1895, one larger pastoral lease was granted over the same area, pursuant to the 1890 Act, to James Ebenezer Tonkin. Mr Tonkin's pastoral lease was cancelled only eight years later, in 1903.

 6.    From 1903 until 1937, no non-indigenous person held any rights over the Jabiru land. During that time, on 1 January 1911, the Jabiru land became part of the Northern Territory of Australia (the Territory), a territory of the newly-formed Commonwealth of Australia: Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth). In 1927, the Commonwealth split the Northern Territory into two administrative regions: North Australia and Central Australia: Northern Australia Act 1926 (Cth). The Jabiru land fell within North Australia. In 1931, however, the two regions were abolished and the Jabiru land again simply became part of the newly-recreated Territory.

 7.    In 1937, a grazing licence was granted over the Jabiru land by the Commonwealth to Edward Sawdy and Daniel Osborn, pursuant to the Crown Lands Ordinance 1931 (NT) (1931 CL Ordinance). In the next nearly 30 years, eight further grazing licences were granted over the Jabiru land to various other persons. None of these nine grazing licences lasted for a term of more than four years. The last one, which was held by Mudginberri Station Ltd (Mudginberri), expired on 30 June 1965.

 8.    The next day, 1 July 1965, an Occupation (Development) Licence (ODL) was granted over the whole of the Jabiru land to the same company, Mudginberri. The ODL was granted pursuant to s 108 of the 1931 CL Ordinance. The ODL gave Mudginberri the right to occupy the land for the purpose of taking and shooting of buffaloes, and the production of meat and hides from the carcasses of those buffaloes, and for any other purposes approved by the Administrator of the Territory. The ODL was surrendered by Mudginberri less than two years later, on 11 January 1967.

 9.    For the five subsequent years, no right or interest in the Jabiru land was granted by the Commonwealth to any person. Then in 1972, the Commonwealth declared land including the Jabiru land to be a sanctuary and a protected area under ss 14 and 22 respectively of the Wildlife Conservation and Control Ordinance (NT).