FEDERAL COURT OF AUSTRALIA

Freddie on behalf of the Kankawarla, Kanturrpa, Kurtinja, Patta, Pirrtangu, Purrurtu and Warupunju landholding groups v Northern Territory of Australia [2019] FCA 1024

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding NTD48/2017 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 and the second and third 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 Act) the parties hereby file 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.    Subject to the order in [3], the Determination is to take effect immediately upon the making of a determination under s 56(2)(b) or s 57(2) of the Act.

3.    If a determination under s 56(2)(b) or s 57(2) is not made within 12 months (or such longer period as extended by the Court), the Determination will not take effect.

4.    The parties have liberty to apply to establish the precise location and boundaries of any:

(a)    public works and adjacent land and waters identified or otherwise referred to in Schedule C of the Determination; and

(b)    roads excluded from the Determination Area by virtue of their exclusion from the instrument of a grant over the affected area.

5.    There be no order as to costs.

THE COURT DETERMINES THAT:

The Determination Area

(1)    The Determination Area comprises NT Portions 494, 1075, 5688, 5691, 5843, 5845, 5847, 5849 and 5851 being the land and waters more particularly described in Schedule A and depicted on the map comprising Schedule B.

(2)    Native title exists in the Determination Area.

(3)    Native title does not exist in those parts of the Determination Area described in Schedule C.

The native title holders

(4)    The Determination Area comprises seven estate areas associated with the Kankawarla, Kanturrpa, Kurtinja, Patta, Pirttangu, Purrurtu and Warupunju landholding 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 landholding groups referred to in [4] by virtue of descent (including adoption) through father’s father, father’s mother, mother’s father and mother’s mother;

(b)    accepted as members of one or more of the landholding groups referred to in [4] by senior members of a landholding group, referred to in subpara (a), by virtue of the following non-descent connections to an estate:

(i)    conception and/or birthplace affiliation with an estate;

(ii)    long-term residential and/or historical connection to an estate;

(iii)    close kinship ties, including intermarriage;

(iv)    shared section/subsection and/or moiety affiliation;

(v)    possession of secular and ritual knowledge relating to an estate, in particular, knowledge of sites and their mythology;

(vi)    shared knowledge of and authority and responsibility for Dreaming tracks and/or places of significance connected with an estate; and

(vii)    seniority in traditional matters concerning the claim group and/or the estate.

Native title rights and interests

(6)    The native title rights and interests in relation to the Determination Area comprise:

(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 holder of Perpetual Pastoral Lease No. 1142;

(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; and

(k)    the right to be accompanied on the land and waters by persons who, though not native title holders, are:

(i)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the land and waters;

(ii)    people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the native title holders;

(iii)    people required by the native title holders to assist in, observe, or record traditional activities on the areas.

(7)    The native title rights and interests do not confer:

(a)    possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others;

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

(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; and

(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)    in relation to NT Portions 494, 1075, 5843, 5845, 5847, 5849 and 5851 the rights and interests of Gordon Ford, Joan Suzanne Ford, Gregory Joseph Ford and Ken Gerard Ford under Perpetual Pastoral Lease No. 1142;

(b)    in relation to NT Portion 1075 the rights and interests of Jemena Northern Gas Pipeline Pty Ltd as the holder of Pipeline Licence No. 34 granted under the Energy Pipelines Act 1981 (NT).

(c)    in relation to NT Portions 494 and 1075 the rights and interests of APT Pipelines (NT) Pty Ltd as the holder of Pipeline Licence No. 4 granted under the Energy Pipelines Act 1981 (NT) and as the beneficiary of the rights and interests under Access Easement Dealing No. 191614 granted to the Northern Territory of Australia;

(d)    in relation to NT Portions 494, 1075, 5843, 5845, 5847, 5849 and 5851 the rights and interests of APT Pipelines (NT) Pty Ltd as sublessee under Sublease Dealing No. 819589 expiring on 12 December 2032;

(e)    in relation to NT Portions 5688 and 5691 the rights and interests of the AustralAsia Railway Corporation under Crown Lease Term 1902 and 1880 respectively;

(f)    the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT) (or its predecessor):

(g)    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 Schedule 3 to the Telecommunications Act 1997 (Cth), including rights:

A.    to inspect land;

B.    to install and operate telecommunication facilities; and

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

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

(h)    in relation to NT Portions 494, 1075, 5843, 5845, 5847, 5849 and 5851 the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases set out in ss 38(2) to (6) of the Pastoral Land Act 1992 (NT);

(i)    the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1984 (NT);

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

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

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

(ii)    conferred by statute.

Relationship between rights and interests

(10)    To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in [6] in relation to NT Portions 494, 1075, 5843, 5845, 5847, 5849 and 5851 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in [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 Portions 5688 and 5691 the relationship between the native title rights and interests referred to in [6] and the interest of the AustralAsia Railway Corporation referred to in [9] is that the leases granted to the Corporation:

(a)    are 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 grants or their effect is wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and

(d)    if the grants or their effect is removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent.

Other matters

(12)    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)); and

(c)    prescribed substances (as defined in s 5 of the Atomic Energy Act 1953 (Cth) and s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth)).

(13)    In this Determination the term:

(a)    “natural resources” means:

(i)    animals ferae naturae, birds, fish and plants, including timber, wax, resin and gum; and

(ii)    surface soils, clays, stone, rocks and ochre,

but does not include minerals, petroleum and prescribed substances;

(b)    “natural waters” includes springs and rockholes.

(14)    Unless the contrary intention appears, a word or expression used in the Act has the same meaning in this determination as it has in the Act.

SCHEDULE A

(1)    The Determination Area comprises the following areas of land and waters:

(a)    NT Portion 494 comprising an area of 2,468 square kilometres held under Perpetual Pastoral Lease No 1142;

(b)    NT Portion 1075 comprising an area of 1,178 square kilometres 46 hectares held under Perpetual Pastoral Lease No 1142;

(c)    NT Portion 5843 comprising an area of one hectare, 4,400 square metres held under Perpetual Pastoral Lease No 1142;

(d)    NT Portion 5845 comprising an area of 0.5 square metre held under Perpetual Pastoral Lease No 1142;

(e)    NT Portion 5847 comprising an area of 4,070 square metres held under Perpetual Pastoral Lease No 1142;

(f)    NT Portion 5849 comprising an area of four hectares, 300 square metres held under Perpetual Pastoral Lease No 1142;

(g)    NT Portion 5851 comprising an area of one square kilometre, two hectares, 6,000 square metres held under Perpetual Pastoral Lease No 1142;

(h)    NT Portion 5688 comprising an area of three square kilometres, 95 hectares, 4,000 square metres held under Crown Lease Term 1902 by the AustralAsia Railway Corporation; and

(i)    NT Portion 5691 comprising an area of 58 hectares, 7,000 square metres held under Crown Lease Term 1880 by the AustralAsia Railway Corporation.

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

(a)    NT Portion 1105;

(b)    NT Portion 1106;

(c)    NT Portion 1548;

(d)    NT Portion 7021;

(e)    the areas comprising approximately 10.89 hectares and 20.91 hectares respectively as delineated on Survey Plan S91/85A (Proposed Road Opening); and

(f)    the following roads constructed by or on behalf of the Northern Territory as public roads:

(i)    a road 100 metres wide (Kunayungka Road) which traverses NT Portion 494 from the boundary with the Warumungu Aboriginal Land Trust (NT Portion 4115) to the boundary of Karlantijpa South Aboriginal Land Trust (NT Portion 3556);

(ii)    a road 100 metres wide (Warrego Road) which traverses NT Portion 494 in a north westerly direction from its junction with Stuart Highway to the boundary of the Philip Creek Station (NT Portion 408) and NT Portion 4449;

(iii)    a road 100 metres wide (New Homestead Road) which traverses NT Portion 494 from the Tennant Creek Town Boundary to the Tennant Creek Station Homestead; and

(iv)    a road 100 metres wide (Gosse River Road) which traverses NT Portion 1075 from the boundary with the Warumungu Aboriginal Land Trust (NT Portion 4068) to the boundary with the Warumungu Aboriginal Land Trust (NT Portion 3735).

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 centreline), 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 five metres either side of the centreline);

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

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

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

(2)    In addition to the areas referred to in [1] above native title has been wholly extinguished in that part of NT Portion 1075 covered by the Overland Telegraph Line (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 relating to land and waters in the locality of Tennant Creek in central Northern Territory. The area covered by this determination comprises seven estate areas associated with the Kankawarla, Kanturrpa, Kurtinja, Patta, Pirrtangu, Purrurtu and Warupunju landholding groups.

2    The applicant commenced this proceeding on 3 October 2017. The Northern Territory is joined as the first respondent. The parties now join in an application for orders resolving the whole of the claim by consent under s 87 of the Native Title Act 1993 (Cth).

SECTION 87

3    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 consequence 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 State of 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.

4    The 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, a part of the proceedings or a matter arising out of the proceedings (s 87(1)(a));

(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)); and

(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)).

5    If these conditions are satisfied, the Court may make an order in, or consistent with, the terms of the parties’ agreement if it appears to the Court that it is appropriate to do so: (s 87(1A) and (2)). The Court may also make orders giving effect to the terms of the parties’ agreement involving matters other than native title: s 87(1A) and (5).

6    The application was accepted for registration pursuant to s 190A of the Act on 24 November 2017. A notice was issued pursuant to s 66 of the Act and the period specified in the notice ended on 23 April 2018. The Determination reflects the agreement that has been reached between the parties and relates to the whole of the proceeding. The agreement has been reduced to writing, signed by or on behalf of the parties and filed with the Court on 14 June 2019, amended on 26 June 2019.

7    Section 94A of the Act provides that an order in which the Court makes a determination of native title must set out details of the matters mentioned in s 225. It 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.

8    “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.

9    In respect of the Determination Area, I am satisfied that the requirements of ss 225(a) to (e) are complied with. The Determination:

(1)    identifies (at [4] and [5]) the persons, or each group of persons, holding the common or group rights comprising the native title in the Determination Area;

(2)    describes (at [6]) the nature and extent of the native title rights and interests, being rights and interests that are recognised by the common law;

(3)    sets out (at [7] and [8]) the limitations on their exercise;

(4)    describes (at [9]) the nature and extent of other interests in the Determination Area;

(5)    describes (at [10] and [11]) the relationship between the native title rights and interests described at [6] and the other interests described at [9]; and

(6)    states (at [7]) that the native title rights and interests do not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

10    The application is valid and made in accordance with s 61 of the Act. It relates to an area in respect of which there exists no other approved determination of native title: s 68 of the Act. There are no other proceedings before the Court relating to native title determination applications that cover any part of the Determination Area which would require orders to be made under s 67(1) of the Act.

11    In light of the foregoing, I am satisfied that it is within the power of the Court to make the orders.

It is appropriate to make the orders

12    The Preamble to the Act sets out the considerations taken into account by the Parliament in enacting its provisions. It states:

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.

13    The preamble goes on to confirm that the people of Australia intend to rectify the consequences of past injustices by the special measures contained in the Act for securing the advancement and protection of Aboriginal people and Torres Strait Islanders and:

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.

14    The Act establishes a special procedure for the just and proper ascertainment of native title rights and interests to ensure that, if possible, that be done by conciliation. Section 87 of the Act forms an important part of that procedure. For the purposes of s 87(1A) of the Act, the focus is on whether there is an agreement that has been freely entered into on an informed basis: Ward v State of Western Australia [2006] FCA 1848. As explained in Gepp-Kennedy on behalf of the Dieri People v State of South Australia [2017] FCA 1156:

The power in s 87 of the Act is to be exercised flexibly and with proper regard to the purposes for which it was enacted: Lovett at [36]. The section contemplates that the Court may make a determination of native title in the absence of a comprehensive evidentiary case sufficient to establish all of the facts supporting the determination. The focus is upon the making of the agreement, and especially upon the role of the State party … in scrutinising the claim ‘just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land’: Smith v State of Western Australia (2000) 104 FCR 494 at [38] (Madgwick J).

15    In respect of the Territory, the Court should be satisfied that it has taken steps to satisfy itself that there is a credible basis for the claim. In doing so, the Territory may rely on “significantly less material that would be necessary to justify a judicial determination of the issues”: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [38].

16    The Territory as the first respondent has played an active role in the negotiation of the agreement that is now before the Court. I am satisfied that the Territory, on behalf of the community generally, has had regard to the requirements of the Act and has conducted an appropriate assessment process. As part of that process, the claim group provided the Territory with a summary anthropological report prepared by Susan Dale Donaldson, containing an appropriate declaration in accordance with the Practice Notes of the Court. In addition, the Territory prepared an analysis of the extinguishment of native title within the Determination Area based on the grant of tenure and the construction or establishment of public works. By that process, the applicant and the first respondent, being competently advised, have reached agreement as to those areas within the Determination Area in which native title exists and those areas in which in which it has been extinguished.

17    Before concluding, it is appropriate to acknowledge the importance of anthropological research in the resolution of claims brought under the Act, whether the claims be resolved by conciliation or in the context of a contested trial. In a sense, the passage of the Act and the exercise of this Court’s jurisdiction under it, has created an environment in which the rich and diverse culture of Aboriginal and Torres Strait Islanders has been researched, interpreted and recorded. Anthropologists act as cultural interpreters, enabling non-Indigenous Australians to better appreciate the unique and ancient culture of Aboriginal peoples and Torres Strait Islanders and to better appreciate the relevance and importance of that culture to the whole of Australian society.

18    The anthropological report prepared for the purposes of the present case refers to the continuing connection of the seven landholding groups to their respective estates within the Determination Area. Of particular significance is the care and concern of the present day members of the claim group to ensure that the lands and waters within the area are respected and protected and that knowledge relating to the determination area is preserved and passed down to their descendants. The custodianship and connection to which the report refers is founded in traditional laws and customs that have persisted for a period of time that is difficult to comprehend. The Determination will facilitate the continued observance of those traditional laws and customs into the future.

19    For the purposes of s 87(1A) and (2) of the Act it is appears appropriate to make the orders sought by the parties without a hearing and I will so order.

Associate:

Dated:    4 July 2019