FEDERAL COURT OF AUSTRALIA

Coleman on behalf of the Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar Groups v Northern Territory of Australia [2019] FCA 477

ORDERS

THE COURT ORDERS THAT:

1.    There be a determination of native title in the matter NTD19/2018 in the terms of the determination set out below.

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

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

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

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

4.    There be no order as to costs.

5.    The parties have liberty to apply for the following purposes:

(a)    to establish the existence of any public work (including any adjacent land or waters), as defined in the Native Title Act, that is said to fall within Items 6, 7 and 8 of Schedule D to this determination;

(b)    to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the determination area referred to in Schedule D to this determination.

BY CONSENT THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE PURSUANT TO SECTION 87 OF THE NATIVE TITLE ACT:

Existence of native title (s 225)

1.    The determination area is the land and waters described in Schedule A and depicted on the map comprising Schedule B (the determination area).

2.    Native title exists in those parts of the determination area identified in Schedule C being:

(a)    the areas of land and waters to which s 47A or s 47B of the Native Title Act applies, and more particularly described in item 1(a) of Schedule C (the Schedule C 1(a) areas);

(b)    the remaining areas of land and waters, being the areas more particularly described in item 1(b) of Schedule C (the Schedule C 1(b) areas).

3.    Native title does not exist in those parts of the determination area identified in Schedule D.

4.    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.

Native title holders (s 225(a))

5.    The native title is held by the persons described in Orders 6 - 10.

6.    The land and waters of the determination area are held by the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group.

7.    The Wagiman group includes persons who are members of the group by reason of patrilineal descent and/or matrilineal descent.

8.    The Jawoyn Bolmo, Matjba and Wurrkbarbar group includes persons who are members of the group by reason of:

(a)    patrilineal descent; or

(b)    his or her mother being or having been a member of the group by reason of patrilineal descent.

9.    Aboriginal people who have been incorporated into the Wagiman group or the Jawoyn Bolmo, Matjba and Wurrkbarbar group by adoption in accordance with traditional laws and customs of the native title holders.

10.    In accordance with traditional laws and customs, other Aboriginal people have rights and interests in respect of the determination area, subject to the rights and interests of the members of the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group, such people being:

(a)    members of the neighbouring Aboriginal groups who are resident on the determination area;

(b)    spouses of the members of the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group (including any children of those spouses) who are resident on the determination area; and

(c)    living matrilineal descendants of the Jawoyn Bolmo, Matjba and Wurrkbarbar group other than those referred to in Order 8(b).

The nature and extent of native title rights and interests (s 225(b), s 225(e))

11.    Subject to Orders 15, 16, 18 and 19, in relation to the Schedule C 1(a) areas the native title rights and interests of the members of the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group are the rights of possession, occupation, use and enjoyment to the exclusion of all others, including the right to access and to take for any purpose the resources of those areas.

12.    Subject to Orders 14, 15, 16, 17, 18 and 19, in relation to the Schedule C 1(b) areas the native title rights and interests of the members of the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group are the rights:

(a)    to access, remain on and use the areas;

(b)    to access and to take for any purpose the resources of the areas; and

(c)    to protect places, areas and things of traditional significance on the areas.

13.    Subject to Orders 14, 15, 16, 17, 18 and 19, in relation to both the Schedule C 1(a) areas and the Schedule C 1(b) areas the native title rights and interests of the persons referred to in Order 10 are the rights:

(a)    to access, remain on and use the areas;

(b)    to access the resources of the areas.

Qualifications on native title rights and interests (s 225(b), s 225(e))

14.    The native title rights and interests referred to in Orders 12 and 13 do not confer:

(a)    any right of possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of all others; or

(b)    any right to control access to, or use of, the determination area or its resources.

15.    The native title rights and interests are exercisable in accordance with, and subject to:

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

(b)    the laws of the Northern Territory and the Commonwealth, including the common law.

16.    Notwithstanding anything in this determination, there are no native title rights and interests in:

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

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

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

in the determination area as are wholly owned by the Crown.

17.    In relation to Lot 147 and Lot 153 only, the native title rights and interests do not confer on the native title holders any right:

(a)    to camp on those areas; or

(b)    to light fires on those areas.

The nature and extent of any other interests (s 225(c))

18.    The nature and extent of other rights and interests in relation to the determination area are those set out in Schedule E (other interests).

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

19.    Except as otherwise provided for by law, the relationship between the native title rights and interests and the other interests is as follows:

(a)    the determination does not affect the validity of those other interests

(b)    to the extent of any inconsistency between the other interests and the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but they have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

(c)    otherwise, the other interests co-exist with the native title rights and interests. To avoid doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

20.    The non-extinguishment principle applies to the Alice Springs Darwin Railway validly constructed on Lots 307, 308 and 310.

Definitions

21.    In this determination, unless the contrary intention appears:

‘land’ and ‘waters’ respectively have the same meanings as in the Native Title Act;

‘Native Title Act’ means the Native Title Act 1993 (Cth);

‘the Commonwealth’ means the Commonwealth of Australia;

‘the Northern Territory’ means the Northern Territory of Australia.

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

SCHEDULE A – WRITTEN DESCRIPTION OF THE DETERMINATION AREA

[See Order 1]

The determination area comprises all of the land and waters within the external boundary of the Town of Pine Creek as gazetted on 23 September 1983 (NTG G38) (Town of Pine Creek), being the areas shown generally on the map in Schedule B.

SCHEDULE B – MAP OF THE DETERMINATION AREA

[See Order 1]

The determination area comprises the areas of land and waters shown generally on the map below.

Note: this map depicts some but not all roads listed in Item 8 of Schedule D.

SCHEDULE C – MAP OF THE DETERMINATION AREA

[See Order 2]

Item 1(a) –Areas referred to in Order 2(a): land and waters where prior extinguishment has been disregarded

The parts of the determination area to which s 47A or s 47B of the Native Title Act applies are the lots in the Town of Pine Creek set out in the table below.

In the table “(part)” signifies that native title has been extinguished over part of the lot by a public work or that s 47A or s 47B applies to some, but not all, of the lot. The public works that have extinguished native title are set out in the table entitled “Part Lots Public Works” referred to at Item 6 of Schedule D and include the roads described in Item 8 of Schedule D.

ITEM 1(B) –AREAS REFERRED TO IN ORDER 2(B): LAND AND WATERS THE SUBJECT OF PARTIAL EXTINGUISHMENT OF NATIVE TITLE RIGHTS AND INTERESTS

In this item, “(part)” signifies that native title has been extinguished over part of the lot by a public work. The public works that have extinguished native title are set out in the table at Item 6 of Schedule D and include the roads described in Item 8 of Schedule D.

The parts of the determination area in respect of which native title rights and interests have been partially extinguished are the following lots in the Town of Pine Creek:

1.    Lot 147 (cemetery)

2.    Lot 153 (cemetery)

3.    Lot 288 (part only, being those parts covered by OL 3728 and OL 3727 and not the subject of any public work)

4.    Lot 233 (part)

5.    Lot 276 (part only, being that part covered by OL 3758 and not the subject of any public work)

6.    Lot 277 (part only, being the part covered by OL 3758 and not the subject of any public work)

7.    Lot 307

8.    Lot 308

9.    Lot 310

SCHEDULE D – AREAS WHERE NATIVE TITLE DOES NOT EXIST

[See Order 3]

Native title rights and interests do not exist in the following areas of land and waters:

1.    The whole of each of the following lots in the Town of Pine Creek, which have been the subjects of grants of estates in fee simple:

   55, 56, 139, 140, 141, 154, 155, 157, 158, 180, 189, 195, 206, 208, 211, 213, 227, 228, 238, 298, 305, 309 and 313.

2.    The whole of each of the following lots in the Town of Pine Creek, which have been the subjects of grants of Crown Lease Perpetual or Term Leases:

   51, 173, 174, 175, 177, 178, 181, 192, 193, 210, 220, 221, 222, 223, 242 and 299.

3.    The whole of each of the following lots in the Town of Pine Creek, which have been the subjects of grants of Leases of Town Lands:

   7, 8, 9, 10, 11, 12, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 48, 49, 53, 57, 58, 59, 60, 61, 62, 72, 84, 111, 130, 131, 132, 138, 150, 151, 152, 322 and 323.

4.    The whole of each of the following lots in the Town of Pine Creek, which have been the subjects of grants of Miscellaneous Leases:

   26 and 54.

5.    The whole of each of the following lots in the Town of Pine Creek upon which public works have been constructed:

   52, 63, 67, 68, 69, 70, 77, 78, 79, 80, 81, 82, 83, 110, 149, 156, 160, 161, 162, 163, 164, 165, 166, 167, 168, 176, 183, 184, 185, 188, 190, 191, 194, 198, 199, 200, 202, 203, 204, 205, 207, 209, 214, 215, 216, 217, 218, 219, 224, 225, 230, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 267, 268, 271, 294, 295, 296, 301, 302, 316, 325.

6.    Parts of the lots in the Town of Pine Creek set out in the table below. The parts of these lots where native title is extinguished are: 1) the parts where the public works set out in the table below have been constructed; and 2) any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

Table: Part Lots Public Works

7.    A network of sewer, power generation and electricity supply exists throughout the Town of Pine Creek. The following sets out the adjacent areas for the public works pursuant to section 251D of the Native Title Act 1993 (Cth):

(a)    Adjacent areas for sewerage system:

150 PVC reticulation main 1.5m either side of the centreline, 100 PVC rising main 1.5m either side of the centreline, 50 PVC rising main 1.5m either side of the centreline, 100 AC rising main 1.5m either side of the centreline, 225 AC overflow rising main 3m either side of the centreline, 300 PC overflow pipe 3m either side of the centreline.

(b)    Adjacent areas for electricity supply:

22kv overhead powerlines 10m either side of the centreline, dual 22kv overhead HV power line 12m either side of the centreline, 415 LV overhead powerline 12m either side of the centreline, 415kv reticulation lines connecting to the 22kv overhead powerlines 10m either side of the centreline, 240v overhead service powerline 4m either side of the centreline, 132kv overhead transmission powerline 22.5m either side of the centreline, 66kv interconnector overhead transmission line 12m either side of the centreline, 66kv cosmo feeder overhead transmission powerline 12m either side of the centreline.

(c)    Adjacent areas for water supply:

100mm distribution water main pipeline 5 metres either side of the centreline, 300 PVC potable connection 3m either side of the centreline, 50 PVC potable connection 1.5m either side of the centreline, 100 PVC potable connection 1.5m either side of the centreline, 150 PVC potable connection 1.5m either side of centreline, 225 PVC potable distribution 3m either side of the centreline, 100 AC potable distribution main 1.5m either side of centreline, 100 AC reticulation main 1.5m either side of centreline, 150 PVC potable distribution main 1.5m either side of the centreline, 20mm service connection line 1.5m either side of the centreline, 150 PVC potable headworks 1.5m either side of the centreline, 225 PVC potable reticulation 3m either side of the centreline, 100 PVC potable distribution 1.5m either side of the centreline, 100 PVC potable reticulation main 1.5m either side of the centreline, 100 CICL potable reticulation water main 1.5m either side of the centreline, 20DN potable water service connection 1.5m either side of centreline.

(d)    Adjacent areas for bores:

Adjacent area for fenced bores is the area of the fenced bore and an access track of 10m (5m either side of centreline). Adjacent area for unfenced bores is 25m radius from the bore and an access track of 10m (5m either side of centreline).

8.    The following roads in the Town of Pine Creek:

(a)    Baxter Terrace (20.115m), Main Terrace (30.175m), Little Street (20.115m), Ward Street (20.115m), Jensen Street (20.115m), Moule Street (30.175m), Pater Terrace (23.395m), Parsons Terrace (23.395m), Railway Terrace (20.115m), Millar Terrace (20.115m), Whitelaw Street (20m), Cemetery Road (road to Lot 153) (20m), Pine Creek Compound Road (20.115m), Playford Street (20.115m), McClure Street (16m), Phillips Street (16m), Buchanan Street (16m), Sewer Ponds Creek Road (20m), Gandys Road (150m), Eleanor Road (200m), Wilcox Street (20m), Chinatown Road (including that part traversing Lot 270) (50m)

(b)    unnamed roads (23.295m) created vide survey TBK 2/47 dated 28.12.1888) namely:

(i)    the roads extending east from the intersection of Parsons Terrace and Whitelaw Street;

(ii)    the road extending south east from Millar Terrace and intersecting with the road defined at (i); and

(iii)    the road between Little Street and Playford Street (and abutting the western boundary of Lot 111) running from Ward Street north to Baxter Terrace.

(iv)    former realignment of the Stuart Highway established over part Lot 169;

(v)    former realignment of the Stuart Highway established over whole Lots 171 and 172;

(vi)    roads established over whole Lots 267 and 268.

(c)    Other roads:

(i)    that part of roads created at the intersection of Ward and Jensen Streets abutting the northern boundary of Lot 12 (20.115m);

(ii)    road traversing Lot 211, 294, 287, 308, 309, and part Stuart Highway (Old Moline Road commencing from north-west corner of Lot 211) (20.12m);

(iii)    road traversing Lot 294, 309, 179, 286, 303, 280 and part Stuart Highway (road from Lot 211 traversing north to the Stuart Highway to Lot 303) (20.11m);

(iv)    road to Lot 153 (Pine Creek Cemetery) traversing Lot 291, Stuart Highway, Lots 289 and 290 (Sewer Ponds Creek Road) (20m);

(v)    road to Lot 149 (sewerage treatment ponds) traversing Lots 289 east of Lots 307 and 308 (Sewerage Ponds Road) (20m);

(vi)    road traversing Lot 307 (20m);

(vii)    that part of the Sewer Ponds Pine Creek Road (20m) within Lot 290;

(viii)    that part of the Airfield access road (20m) within Lot 291;

(ix)    access road within Lot 297 (20m) which comes off the Pine Creek Compound Road for the purposes of access to the Pine Creek borefield on Lot 297;

(x)    access roads within Lot 303 (20m) which provide access to power, water and electricity supply infrastructure within Lot 303 including bore RN 21666;

(d)    former alignments of the Stuart Highway namely:

(i)    Police Paddock Road traversing Lots 274, 277 and 278 (25m either side of centreline);

(ii)    Tabletop Road traversing Lots 276 and 277 (25m either side of centreline);

(iii)    Goldfields Road traversing Lot 284 (25m either side of centreline);

(iv)    Enterprise Road traversing Lot 284 (25m either side of centreline);

(v)    Enterprise Lookout Road traversing Lot 284 (25m either side of centreline); and

(vi)    Jolly’s Dam Road traversing lot 285 (25m either side of centreline);

  (e)    Lot 316 (Kakadu Highway 75m either side of centreline);

(f)    first alignment of the Stuart Highway traversing numerous lots within the external boundary of the Town of Pine Creek including Lots 263, 272, 276, 277, 278 and 284;

(g)    Stuart Highway (100m either side of centreline);

9.    The distances given above in metres in relation to some roads reflect the widths of the respective road corridors and the extent of the adjacent area relevant to those roads within the meaning of s 251D of the Native Title Act 1993 (Cth).

10.    Those parts of the determination area not identified in Items 7, 8 and 9 above, if any, on which there exists a public work (including any adjacent land or waters), as defined in the Native Title Act, which was validly constructed, established or situated prior to 23 December 1996 or commenced to be constructed, established or situated on or before that date

SCHEDULE E – OTHER INTERESTS

[See Order 18]

The nature and extent of other interests in relation to the determination area as they exist at the date of this determination as follows:

(a)    the rights and interests of Telstra Corporation Limited:

(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 the Telecommunications Act 1997 (Cth), including rights:

a.    to inspect land;

b.    to install, occupy and operate telecommunications facilities; and

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

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

(iv)    under any license, permit, access agreement or easement relating to its telecommunications facilities in the determination area;

(b)    the rights of Aboriginal persons (whether or not native title holders) by virtue of the

Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

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

(d)    the rights of any employee, servant, agent or instrumentality of the Northern Territory in relation to the drainage easement over part Lots 171 and 172 as depicted on Survey Plan S83/164;

(d)    the rights of the Power and Water Corporation, its employees, agents or contractors in relation to the following:

(i)    a sewerage easement on part Lots 46 and 47 as depicted on Plan A5;

(ii)    a sewerage easement on part Lot 71 as depicted on Plan OP 1089;

(iii)    a sewerage easement on part Lot 169 as depicted on Survey Plan S83/164;

(iv)    a sewerage easement on part Lot 179 as depicted on Survey Plan S89/247;

(v)    an electricity supply corridor on part Lot 263 as depicted on Survey Plan S88/359;

(vi)    an electricity supply easement on part Lot 315 as depicted on Survey Plan S2000/236;

(f)    Rights and interests held by reason of the force and operation of the Water Act (NT);

(g)    the interests of persons to whom valid and validated rights and interests have been:

(i)    granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or

(ii)    otherwise conferred by statute.

(h)    the rights and interests of the holders of the following mining titles granted pursuant to the Mineral Titles Act (NT) (or its predecessor):

REASONS FOR JUDGMENT

WHITE J:

1    On 29 May 2018, Bessie Coleman and three others (to whom I will refer collectively as “the applicant”) filed an application for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in respect of the area of the Town of Pine Creek in the Northern Territory.

2    The applicant and the respondents have now agreed on the terms of a determination and asked the Court to make the determination by consent.

3    For the reasons which follow, I consider it appropriate to give effect to the parties’ agreement and to make the determination.

The Determination Area

4    The Determination Area comprises all the land and waters within the external boundaries of the Town of Pine Creek. It is an area of approximately 12.5 km2 and is identified conveniently in the map which is Schedule B to the Determination.

Making a determination by consent

5    Section 87 of the NT Act permits the Court to make a determination by consent, and without conducting a trial, if it is satisfied of a number of matters:

(1)    the period specified in the notice given under s 66 of the NT Act has ended (s 87(1);

(2)    there is agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));

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

(4)    an order in, or consistent with, the terms agreed upon by the parties is within the power of the Court (s 87(1)(c)); and

(5)    it is appropriate to make the orders sought (s 87(1) and (2)).

6    The first three of these requirements are of a more formal or procedural kind. They are satisfied in the present case. For the reasons which I will elaborate below, I am satisfied that the terms of the proposed Determination are within the Court’s power and that it is appropriate to make the Determination.

Matters of approach

7    The requirement that the Court be satisfied that it is appropriate to make a proposed determination, even when it is by consent, reflects the fact that a determination of native title binds the community generally, and not just the parties to the proceedings in which the determination is made: Munn (for and on behalf of Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [22].

8    It is an aspect of the overall policy of the NT Act that the parties are in encouraged to reach agreement with respect to claims of native title. Sections 87 and 87A of the NT Act allow the Court to give effect to those agreements by the making of consent determinations.

9    When considering a request by the parties for a consent determination, the Court has regard to the policy of the NT Act and, of course, to the parties’ agreement. The Court also places particular reliance on State and Territory parties to native title proceedings. In Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at [38], Madgwick J said:

… State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful[ly] as the community would expect in relation to claims by non-Aborigines to significant rights over such land. …

10    In King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 at [19], Keane CJ spoke of the role of the States and Territories as follows:

More recently, the Court has been prepared to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the Court reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed. …

11    In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said:

[36]    … 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.

[37]    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 … 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 … 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.

(Citations omitted)

12    In accordance with the approach stated in these authorities, the Court does not, on applications pursuant to ss 87 and 87A of the NT Act, examine the underlying evidence with a view to satisfying itself that it would justify a determination following a full hearing. Instead, the Court considers whether the agreement has been entered into freely on an informed and rational basis, that the parties are acting in good faith, and that the State or Territory party has taken steps to satisfy itself that there is a credible basis for the application.

13    In this case, the Court is aware that the Northern Territory has conducted a rigorous assessment of the evidence provided by the applicant in support of the claim. This has involved it assessing the anthropological and historical evidence submitted by the applicant, including the two reports of Mr Gareth Lewis commissioned by the Northern Land Council (the NLC) on behalf of the applicant, as well as claimant genealogies and the statements of two of the claimants. The Territory referred the material provided by the applicant to a consultant anthropologist and, as I understand it, that led to the preparation of the second report from Mr Lewis. The two anthropologists have also conferred with a view to resolving the outstanding anthropological issues.

14    Having regard to all these matters, there is no reason to think that the Northern Territory has not discharged its responsibilities with respect to the assessment of the claim.

Mandatory requirements

15    Section 94A of the NT Act requires that a determination of native title set out details of the matters mentioned in s 225. That section 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.

16    The term “native title rights and interests” used in s 225(b) is defined in s 223 of the NT Act relevantly as follows:

223 Native title

Common law rights and interests

(1)    The expression native title or native title rights and interests means 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.

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

…

17    The operation of s 223(1) was considered in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422. It was also considered in Risk v Northern Territory of Australia [2006] FCA 404 (Mansfield J). These authorities establish that there must be a recognisable group or society which presently recognises and observes traditional laws and customs in the area of the proposed determination. This means that the present native title claim group must possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them and, by those laws and customs, have a connection to the land and waters of the Determination Area: Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 at [38]-[39].

18    The present application is a little unusual in that the native title claim group comprises two separate groups: members of the Wagiman Language Group and members of the Jawoyn Claim Group comprised of a subset of the Jawoyn Language Group, being members of three clans, the Jawoyn Bolmo, the Matjba and the Wurrkbarbar Group. There are some distinct differences between the Wagiman Group and Jawoyn Group, and each has its own distinct traditions, knowledge and customs. However, it is also apparent that, in relation to the claim area, there is a shared history, shared dreamings, shared rituals, shared practices and shared sites of sacred and ceremonial significance. Mr Lewis has referred to these in both his first and second reports.

19    The Territory accepts that these matters indicate that the claim group constitutes a single society comprised of members of the two groups each having native title rights and interests. Such an approach is in accord with the authorities, as it is accepted that sub-groups of claimants may be part of a single society “united in and by its acknowledgment and observance of a body of law and customs” (Yorta Yorta at [49]) even though the claimants identify themselves by reference to a sub-group within the society, rather than by reference to the society itself. See, by way of example, Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26, (2010) 266 ALR 537 at [67], [75]-[77]; Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528, (2014) 317 ALR 432; Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752; Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993 at [30] and see the authorities cited therein.

20    Turning to the particular matters to which s 225 refers, cll 5 to 10 of the Determination identify the native title holders.

21    The nature and extent of the native title rights and interests in relation to the Determination Area, to which s 225(b) of the NT Act refers, are identified in cll 11 to 13 of the Determination.

22    The Determination indicates those areas in the Determination Area in which native title does, and does not, exist – see cll 2 and 3 and Schedules C and D. It recognises that native title has been extinguished in respect of many of the allotments in the claim area, in some instances wholly and in other instances partly.

23    The nature and extent of other interests in the claim area, as required by s 225(c) of the NT Act are stated, with appropriate specificity, in cl 18 and in Schedule E of the Determination. The relationship between the native title rights and the other interests are specified in cll 19 and 20. Finally, as required by s 225(e), the Determination indicates the areas in which the native title rights and interests are exclusive. Such exclusivity is limited to the areas of land and waters to which ss 47A and 47B of the NT Act apply being those described in Schedule C Item 1(a). In respect of the remaining areas, the native title rights and interests are non-exclusive.

24    Sections 55 and 56 of the NT Act require that the Court determine whether the native title be held on trust and, if so, by whom. The second order which I will make will be to the effect that the native title is not to be held on trust.

25    I refer to some remaining discretionary matters. All parties are represented and, as previously indicated, all consent to the making of the Determination. Their consent can be regarded as informed and rational.

26    The Northern Territory has undertaken searches of the land tenure and of the mining and other relevant interests so as to determine the extent of “other interests” within the Determination Area and has provided the results of those searches to the parties.

27    Although there have been overlapping claims lodged with respect to the claim area, those claims have now been discontinued or, in one case, amended so as to exclude the area of the Township of Pine Creek.

28    A native title body corporate is to be notified to the Court within three months.

29    Finally, I indicate my satisfaction that there has been compliance with all of the requirements of the NT Act.

Conclusion

30    For these reasons, I am satisfied that it appropriate to make the Determination on which the parties have agreed. In doing so, I emphasise that the Determination is not in the nature of the grant of new interest in land to the native title holders. Instead, it is a declaration that the native title rights and interests exist, and that they have always existed, at least since European settlement.

Associate:

Dated:    9 April 2019

SCHEDULE OF PARTIES