FEDERAL COURT OF AUSTRALIA

Reiff on behalf of the members of the Ankerente, Arntinarre, Arraperre, Artwele, Atnwarle, Ilparle, Immarkwe, Ltye and Thipatherre Landholding Groups v Northern Territory of Australia [2021] FCA 400

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in this proceeding NTD16/2018 has made a native title determination application (the application) that relates to an area of land and waters which is the subject of a proposed determination of native title (the Determination).

B.    The Applicant and the Respondents to this proceeding (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.    The native title is not to be held on trust.

3.    Ingkekure Aboriginal Corporation (ICN: 9068) 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 366, 482, 3803, 4267, 7443, 7509, 7510, 7511 and 7558 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 nine estate areas associated with the Ankerente, Arntinarre, Arraperre, Artwele, Atnwarle, Ilparle, Immarkwe, Ltye and Thipatherre 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 paragraph 4 by virtue of descent (including adoption) through father’s father, mother’s father, father’s mother and mother’s mother; or

(b)    accepted as members of one or more of the landholding groups referred to in paragraph 4 by senior members of a landholding group, referred to in subparagraph 5(a), by virtue of the following non-descent connections to an estate:

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

(ii)    long-term residence in an estate;

(iii)    ties that enjoy broad recognition and acceptance amongst the members of a landholding group including by virtue of adoption and intermarriage;

(iv)    possession of secular and traditional spiritual knowledge, authority and responsibility for an estate or surrounding country, in particular, knowledge of sites and their mythology and associated rites;

(v)    authority and responsibility for shared Dreaming tracks and/or places of significance connected with an 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 holders of Perpetual Pastoral Lease No. 962 and Perpetual Pastoral Lease No. 1119 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;

(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;

(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;

(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 366 and 7511 (PPL 962):

(i)    the rights and interests of Jervois Pastoral Co. Pty Ltd under Perpetual Pastoral Lease No. 962 over NT Portions 366 and 7511, subject to the Heritage Place declared pursuant to Pt 2.2 of the Heritage Act 2011 (NT), described as Jervois ELDO Rocket Shelters and located on NT Portions 6656(A) and 6657(A);

(ii)    the rights and interests of the Power and Water Authority as the grantee of Water Supply Easement Dealing 320757;

(iii)    the rights and interests of the proprietor of NT Portion 4450 as the beneficiary of the rights and interests under Right of Way Easement Dealing 347484;

(iv)    the rights and interests of the Northern Territory of Australia as the grantee of survey infrastructure easement Dealing 805693;

(v)    the rights and interests of the parties under the Olympia Resources Limited ILUA (DI2003/008) entered on the Register of Indigenous Land Use Agreement on 20 November 2003;

(vi)    the rights and interests of the parties under the Sandover Petroleum ILUA (DI2006/002) entered on the Register of Indigenous Land Use Agreement on 31 January 2007;

(vii)    the rights and interests of the parties under the NT Oil Ltd:  EP 127 and 128 ILUA (DI2007/002) entered on the Register of Indigenous Land Use Agreement on 15 April 2008;

(viii)    the rights and interests of the parties under the Jervois Project ILUA (DI2016/003) entered on the Register of Indigenous Land Use Agreement on 3 May 2017.

(b)    NT Portion 7511 (Jervois Stock Route) – the rights of use of the stock route that extends over NT Portion 7511 and specified in Schedule 19 of the declaration dated 24 November 1986, published in the Gazette on 26 November 1986, for the passage of travelling stock made pursuant to s 113 of the Crown Lands Act 1931 (NT) and continued as if made under s 96 the Crown Lands Act 1992 (NT);

(c)    NT Portion 482 – the rights and interests of Michael John Broad under Perpetual Pastoral Lease No. 1119:

(i)    the rights and interests of the parties under the Imperial Granites & Minerals Pty Ltd ILUA (DI2002/004) entered on the Register of Indigenous Land Use Agreement on 11 November 2002;

(ii)    the rights and interests of the parties under the NT Oil Ltd: EP 127 and 128 ILUA (DI2007/002) entered on the Register of Indigenous Land Use Agreement on 15 April 2008.

(d)    NT Portion 3803 – the rights and interests of the Ilparle Aboriginal Land Trust;

(e)    NT Portion 4267 – the rights and interests of the Northern Territory (Crown land);

(f)    NT Portion 7443 – valid rights of use for the passage of travelling stock (Phillipson Stock Route);

(g)    NT Portion 7509 – valid rights of use for the passage of travelling stock (Jervois Stock Route);

(h)    NT Portion 7510 – valid rights of use for the passage of travelling stock (Jervois Stock Route);

(i)    NT Portion 7558:

(i)    valid rights of use for the passage of travelling stock (Jervois Stock Route);

(ii)    the legal or equitable interests, if any, held by those persons who use and/or maintain the unofficial airstrip located within NT Portion 7558;

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

Note:  Section 68 of the Mineral Titles Act 2010 (NT) has the effect that a mineral title continues in force beyond its expiry date, if an application for renewal of the title was made before its expiration, and that application has not yet been decided.

(k)    the rights and interests of the holders of the following petroleum titles granted pursuant to the Petroleum Act 1984 (NT) (or its predecessor):

(l)    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 under Sch 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.

(m)    the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases set out in s 38(2) to (6) of the Pastoral Land Act 1992 (NT);

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

(o)    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;

(p)    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.    Subject to paragraph 11, the other interests and the doing of an activity in giving effect to them or of an activity required or permitted by them, prevail over but do not extinguish the native title rights and interests and the existence and exercise of the native title rights and interests do not prevent the carrying on of any such activity.

11.    In relation to NT Portion 7511:

(a)    to the extent that the rights held under the lease over NT Portion 7511 are inconsistent with the continued enjoyment or exercise of the native title rights and interests, the rights under the lease continue to exist in their entirety, but have no effect in relation to the native title rights and interests to the extent of the inconsistency; and

(b)    the existence and exercise of the rights under the lease over NT Portion 7511 do not prevent the doing of any activity required or permitted to be done by or under and in accordance with the native title rights and interests, and the doing of such activities prevails over the exercise of any rights under the lease to the extent of the inconsistency.

12.    In relation to that part of NT Portion 366 subject to infrastructure easement per instrument 805563 noted at paragraph 9(a)(iv) above, the non-extinguishment principle applies by virtue of s 24KA(7) of the Act. To the extent that the creation of the easement is:

(a)    wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights described in paragraph 8, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the other interests to the easement to the extent of any inconsistency; and

(b)    if the easement is wholly or partly removed or otherwise ceases to operate over all or any part of the subject area, the native title rights described in paragraph 8 again have full effect to that extent.

Other matters

13.    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)).

14.    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.

15.    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 366 comprising an area of 2,736 square kilometres held under Perpetual Pastoral Lease No 962 by Jervois Pastoral Co. Pty Ltd.

(b)    NT Portion 7511 comprising an area of 94 square kilometres 8 hectares held under Perpetual Pastoral Lease No 962 by Jervois Pastoral Co. Pty Ltd.

(c)    NT Portion 482 comprising and area of 2,033 square kilometres held under Perpetual Pastoral Lease 1119 by Michael John Broad C/- Jervois Station via Alice Springs.

(d)    NT Portion 3803 comprising an area of 13 square kilometres 76 hectares held for an estate in fee simple by the Ilparle Aboriginal Land Trust.

(e)    NT Portion 4267 comprising an area of 11 square kilometres 41 hectares is Crown land.

(f)    NT Portion 7443 comprising an area of 23 square kilometres 32 hectares is Crown land (Phillipson Stock Route).

(g)    NT Portion 7509 comprising an area of 11 square kilometres 73 hectares is Crown land (Jervois Stock Route).

(h)    NT Portion 7510 comprising an area of 48 square kilometres 75 hectares is Crown land (Jervois Stock Route).

(i)    NT Portion 7558 comprising an area of 34 hectares 3,000 square metres is Crown land (Jervois Stock Route).

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

(a)    NT Portion 1152;

(b)    NT Portion 2957;

(c)    NT Portion 3403;

(d)    NT Portion 3404;

(e)    NT Portion 3405;

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

(i)    a road 150 metres wide (Plenty Highway) from the boundary of NT Portion 2454 (Huckitta Station) to the boundary of NT Portion 366 (Jervois Station);

(ii)    a road 100 metres wide (Plenty Highway) from the boundary of NT Portion 482 (Jinka Station) to the boundary of NT Portion 367 (Tarlton Downs);

(iii)    a road 100 metres wide from Jinka Station to the Plenty Highway;

(iv)    a road 100 metres wide (Bonya Access) from the Plenty Highway to NT Portion 2957 (Bonya Aboriginal Community Living Area);

(v)    a road 100 metres wide (Lucy Creek Access) from the Plenty Highway to the boundary of NT Portion 686 (Lucy Creek).

Schedule B

Determination Area Map

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 centre line);

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

(h)    sewer pipes measuring 150 mm diameter or less (adjacent area 1.5 metres either side of the centre line) and greater than 150 mm (adjacent area 5 metres either side of the centre line);

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

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    This is an application for a determination of native title over an area of approximately 5,000 square kilometres within the boundary of the Jinka and Jervois pastoral leases in the Hart and Anatye localities in the central region of the Northern Territory. The application was filed on 10 May 2018 and was amended with leave of the Court on 16 July 2018.

2    The determination area comprises nine estate areas associated with the Ankerente, Arntinarre, Arraperre, Artwele, Atnwarle, Ilparle, Immarkwe, Ltye and Thipatherre Landholding Groups.

3    On 28 November 2019 the Court made an order for the determination of a separate question in the proceeding relating to whether the grant of the addition of NT Portion 7511 to Perpetual Pastoral Lease 962 (Jervois) was a future act within s 233 of the Native Title Act 1993 (Cth). Following agreement between the parties, this question was answered in the affirmative by consent orders dated 18 March 2020. The resolution of the separate question cleared the way for the parties to apply for a determination of native title by consent.

4    The parties have reached an agreement as to the form of the determination and now seek orders by consent under s 87 of the Act.

SECTION 87

5    Before making a determination of native title by consent the Court must be satisfied that the procedural and substantive requirements of s 87 have been met.

6    Section 87 applies where an agreement has been reached after the end of the notification period prescribed under s 66 of the Act has expired. The terms of the parties’ agreement must be in writing, signed on their behalf and filed with the Court:  Act, s 87(1)(b). The Court must be satisfied that the proposed determination is within the power of the Court:  Act, s 87(1)(c). If these requirements are satisfied the Court may make an order in, or consistent with, the proposed determination without holding a hearing if it appears to the Court that it is appropriate to do so:  Act, s 87(1A) and (2).

7    In these proceedings, the relevant notification period under s 66 of the Act expired on 16 January 2019. The parties have indicated their agreement in the signed minute of proposed orders filed on 11 June 2020.

The proposed determination is within power

8    A determination of native title must fulfil the requirements of s 225 of the Act:  Act, s 94A. Section 225 provides:

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.

9    The term “native title rights and interests” is defined in s 223(1) of the Act as follows:

(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.

10    As the High Court explained in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, at [49] – [56], [86] – [89], to fulfil the requirements of s 223(1) of the Act it must be shown that:

(1)    the members of the claim group are, or are part of, a society united in and by their acknowledgement and observance of a body of accepted laws and customs;

(2)    the present day body of accepted laws and customs is essentially that same body of laws and customs acknowledged and observed by the ancestors of members of the claim group, adapted to modern circumstances; and

(3)    acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs.

See also Risk v Northern Territory of Australia [2006] FCA 404 at [802] – [811].

11    The connection material in this proceeding indicates that the nine landholding groups are part of a wider society that includes Alyawarr, Anmatyerr, Kaytetye and other Arrernte variants. These groups are part of a wider society associated with the North-Eastern Arrernte language and adhere to a body of Arrernte laws and customs. These laws and customs are also observed by neighbouring groups, who acknowledge the claimants’ connection with the determination area. The connection material details the history of the connection that members of the claim group have with the determination area, continuing to the present day.

12    The proposed orders describe those persons holding native title rights and interests by reason of membership of one of the nine landholding groups by descent, or by reason of acceptance as a member by senior members of the landholding group because of the connections set out in the proposed paragraph 5(b).

13    The native title rights and interests in relation to the determination area are set out in proposed paragraph 6. Other rights and interests in the determination area are set out in proposed paragraph 9 and the relationship between these rights and interests is set out in proposed paragraph 10. Proposed paragraph 7 provides that the native title rights and interests do not confer exclusive possession, occupation, use and enjoyment of the land.

14    I am satisfied that the proposed determination is within the power of the Court having regard to ss 94A, 223 and 225 of the Act.

It is appropriate to make the orders sought

15    The preamble to the Act provides important context to the provisions relating to the making of a determination of native title. 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.

16    The preamble goes on to state that the people of Australia intend to rectify the consequences of past injustices through the provisions of the Act, 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.

17    The provisions of the Act providing for the making of determinations of native title by consent are to be interpreted and applied in this context. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J stated:

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: 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.

38.    The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.  …

18    And, as Madgwick J said in Smith v Western Australia (2000) 104 FCR 494 (at [38]):

…  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 as the community would expect in relation to claims by non-Aborigines to significant rights over such land …

19    The applicant and the Northern Territory filed joint submissions and a statement of agreed facts in support of the proposed determination on 11 June 2020. These documents describe the assessment process undertaken by the Northern Territory in relation to the determination area.

20    As a part of that process, the applicant provided the Northern Territory with the Anthropological Report of Mr Michael Cawthorn on 18 May 2018, later supplemented in 2019.

21    The reports of Mr Cawthorn were filed with the Court on 19 June 2020. They describe the Dreaming associations and sacred sites affiliated with each of the landholding groups with respect to the determination area. The reports also include detail about the lives of some of the claim group members, including the responsibilities held for the Dreaming stories relating to the determination area and the efforts being made to instruct the next generation in accordance with traditional Arrernte laws and customs.

22    Concurrently with the anthropological assessment, the Territory undertook an analysis of the extinguishment of native title in the determination area based on grants of tenure and the construction of public works. These issues have been resolved between the parties. The agreed position of the parties with respect to the separate question referred to earlier in these reasons is reflected in the terms of the proposed determination signed by all parties and filed on 11 June 2020.

23    For the purpose of s 87(1A) and (2) of the Act, I am satisfied that it is appropriate to make a determination consistent with that sought by the parties without holding a hearing.

24    It is important to emphasise that this determination does not confer upon the landholding groups any rights or interests in land or waters that have not previously been enjoyed. The groups that speak for the country are descent based groups whose ancestors observed the same traditional laws and customs at the time of sovereignty and for many generations before that. Their rights and interests in the determination area are derived from that ancient body of laws and customs, as is their ongoing spiritual connection with the land. Their rights and interests are recognised by the common law of Australia, as now confirmed by this determination. The parties are to be commended for their efforts in reaching the agreement that enables the determination to be made today.

Associate:

Dated:    5 May 2021

SCHEDULE OF PARTIES