FEDERAL COURT OF AUSTRALIA

Madrill on behalf of the members of the Amapete, Apwetyerlaneme, Atnweale and Warrtharre Landholding Groups v Northern Territory of Australia [2024] FCA 529

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding NTD18/2020 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 parties to the proceeding 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 (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) (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 without holding a hearing.

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 the terms of the determination set out in “Attachment A” to these orders.

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

3.    Huckitta Aboriginal Corporation (ICN: 7371) is:

(a)    to be the prescribed body corporate for the purposes of s 57(2) of the Act; and

(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.

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

ATTACHMENT A

DETERMINATION

THE COURT DETERMINES THAT:

The determination area

1.    The Determination Area comprises NT Portions 2454 and 5994 being the land and waters more particularly described in Schedule A and depicted on the map comprising Schedule B.

2.    Native title exists in the Determination Area as follows:

(a)    NT Portion 2454: the native title rights and interests in paragraph 6; and

(b)    NT Portion 5994: the native title rights and interests in paragraph 7; but they are wholly ineffective in relation to the relevant act due to the operation of s 238(3) of the Act.

3.    Notwithstanding paragraph 2, 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 four estate areas associated with the Amapete, Apwetyerlaneme, Atnweale and Warrtharre 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, father’s mother, mother’s father 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 (a) above, by virtue of the following non-descent connections to an estate:

(i)    spiritual identification with and responsibility for an estate;

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

(iii)    long-term residence in an estate;

(iv)    close kinship ties, including intermarriage;

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

(vi)    a more distant ancestral connection to an estate, for example, mother’s father’s mother; and

(vii)    possession of traditional religious knowledge, authority and responsibility for an estate.

Native title rights and interests

6.    In relation to NT Portion 2454, where any prior extinguishment of native title must be disregarded due to application of s 47 of the Act, the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

7.    In relation to NT Portion 5994, the native title rights and interests of the native title holders are the rights to:

(a)    access, remain on and use the land and waters for any purpose;

(b)    access, take, and/or use the resources of the land and waters for any purpose;

Note: To avoid doubt, matters excluded from the term “resources of the land and waters” are defined at paragraph 14.

(c)    maintain and protect places, areas and things of significance under traditional laws and customs,

and without limiting the generality or scope of sub-paragraphs (a)-(c) above, the rights to:

(d)    live on the land;

(e)    erect shelters and other structures;

(f)    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;

(g)    make decisions, subject to paragraph 8(b) below, 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; and

(h)    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; or

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

8.    The native title rights and interests referred to in paragraph 7 do not confer:

(a)    possession, occupation, use and enjoyment of the land and waters to the exclusion of all others; or

(b)    any right to control access to, or use of, the land and waters or its resources.

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

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

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

Note: Additionally, the relationship between the native title rights and interests and the other interests in paragraph 11 is specified in paragraphs 12 and 13.

10.    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).

Other interests in the Determination Area

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

(a)    NT Portion 2454:

(i)    the rights and interest of Huckitta Aboriginal Corporation under Perpetual Pastoral Lease No. 990;

(ii)    the rights and interest of the proprietor of NT Portion 6990 as the beneficiary of a Right of Way by Easement Dealing No. 797332;

(iii)    the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in PPL No. 990 as set out in s 38(2) and s 38(6) of the Pastoral Land Act 1992 (NT).

(b)    NT Portion 5994: the interest of Tyarne Aboriginal Corporation as the holder of a fee simple estate (subject to the Tyarne ILUA DI2003/013 registered on 14 November 2003); and

(c)    in relation to both NT Portions 2454 and 5994:

(i)    valid or validated rights and interests held by force and operation of the Water Act 1992 (NT);

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

(iii)    the rights and interests (if any) of Telstra Corporation Limited (ACN 051 775 556) and its related bodies corporate and successors in title:

A.    as the owner or operator of telecommunications facilities within the Determination Area;

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

C.    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

D.    under any lease, licence, access agreement or easement relating to its telecommunications facilities within the Determination Area;

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

(v)    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

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

A.    granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or

B.    conferred by statute.

Relationship between rights and interests

12.    In relation to NT Portion 2454 the relationship between the native title rights and interests referred to in paragraph 6 and the other rights and interests referred to in paragraph 11, is that the non-extinguishment principle applies:

(a)    Perpetual Pastoral Lease No. 990 is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests only to the extent that the rights and interests confer possession, occupation, use and enjoyment of the land and water to the exclusion of all others, and:

(i)    the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the lease to the extent of that inconsistency; and

(ii)    if the lease or its effects are wholly removed or otherwise wholly cease to operate over any part of NT Portion 2454 the native title rights and interests again have full effect to that extent;

(b)    the native title rights and interests that are not inconsistent with Perpetual Pastoral Lease No. 990 are the non-exclusive native title rights and interests set out in paragraph 7, and the doing of any activity required or

(c)    permitted to be done by or under the lease prevails over, but does not extinguish, the native title rights and interests; and

(d)    to the extent that the continued existence, enjoyment or exercise of the native title rights and interests is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 11, 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.

13.    In relation to NT Portion 5994, the relationship between the native title rights and interests referred to in paragraph 7 and the interest of the Tyarne Aboriginal Corporation as the holder of a fee simple estate in the land is set out in the Tyarne Indigenous Land Use Agreement (DI2003/013) which was entered on the Register of Indigenous Land Use Agreements on 14 November 2003. The non-extinguishment principle applies:

(a)    the grant of the estate in fee simple is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests;

(b)    the native title continues to exist in its entirety, but has no effect in relation to the grant;

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

(d)    if the grant or its effect are 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.

Definitions

14.    In this determination the term:

(a)     “the Act” means the Native Title Act 1993 (Cth).

(b)     “resources of the land and waters” does not include:

(i)    minerals, petroleum, and prescribed substances as defined in paragraph 10; or

(ii)    any water deriving from, or in relation to, the Determination Area which, from time to time, is lawfully captured by a lessee of Perpetual Pastoral Lease No. 990.

(c)    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

15.    The Determination Area comprises the following areas of land and waters:

(a)    NT Portion 2454 comprising an area of 1,696 square kilometres 51 hectares held under Perpetual Pastoral Lease No. 990; and

(b)     NT Portion 5994 comprising an area of 1 square kilometre 14 hectares 9,000 square metres held for an estate in fee simple by Tyarne Aboriginal Corporation.

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

(a)    NT Portion 3402 comprising an area of 2 hectares 2,500 square metres held for an estate in fee simple by Telstra Corporation Limited (ACN 051 775 556);

(b)    a road 100 metres wide (Plenty Highway) which traverses NT Portion 2454 from the boundary of NT Portion 3676 (Mt Riddock Station) to the boundary of NT Portion 482 (Jinka Station);

(c)    a road 100 metres wide (Indiana Road) which traverses NT Portions 2454 from the Plenty Highway to the boundary of NT Portion 746 (Indiana Station); and

(d)    NT Portion 7508 comprising an area of 69 square kilometres 50 hectares which is Crown land being part of the Jervois Stock Route.

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

Those parts of the Determination Area covered by public works as defined in s 253 of Native Title Act 1993 (Cth) (Act) (including land and waters within the meaning of s 251D 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, if they are public works:

(a)    public roads, namely, rural public roads (50m 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 5m either side of the centre line);

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

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

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

REASONS FOR JUDGMENT

HALLEY J:

A.     INTRODUCTION

1    The parties have sought a consent determination under the Native Title Act 1993 (Cth) (Act) determining that:

(a)    native title exists over the lands and waters described in Schedule A and depicted on the map at Schedule B (Determination Area) of the determination which is Attachment A to the orders (Determination) which accompany these reasons (Orders); and

(b)    the native title in the Determination Area is held by the native title holders identified in paragraphs 4 and 5 of the Determination.

2    The Determination Area is located in Eastern Arrernte territory. It comprises an area of 1,696 square kilometres and 51 hectares under NT Portion 2454, and 1 square kilometre, 14 hectares and 9,000 square metres under NT Portion 5994. The Determination Area is approximately 30 kilometres east of the Community of Atitjere and the Town of Harts Range.

3    The Determination Area comprises the Perpetual Pastoral Lease No. 990 held by Huckitta Aboriginal Corporation (ICN 7371) (Huckitta Pastoral Lease) and the Tyarne Aboriginal Community Living area, an estate in fee simple held by Tyarne Aboriginal Corporation (ICN 3922).

4    The native title claim group comprises members of the Amapete, Apwetyer-laneme, Atnweale and Warrtharre landholding groups or “estates” (claim group). The four landholding groups are affiliated to the following parts of the Determination Area, but their estates extend beyond the boundaries of the Determination Area:

(a)    Amapete – north-eastern;

(b)    Apwetyerlaneme – north-western and central;

(c)    Atnweale – northern; and

(d)    Warrtharre – southern and south-eastern.

5    The estate names derive from particularly significant sacred sites located within each estate. The groups form part of a wider social region referred to as the Arandic region.

6    The claim group comprises persons, according to traditional laws acknowledged and customs observed by them, who have spiritual, physical and/or historical associations with the Determination Area and are traditionally connected to the area through either:

(a)    descent from ancestors (including adoption) connected with the Determination Area including:

(i)    Amapete - Descendants of Blue Bob Ahamareke Penangke (Amapete-arenye), whose children were Sammy Blue Alewatyerre Peltharre, Louis Blue Antenhe Peltharre and Kitty Peltharre;

(ii)    Apwetyerlaneme - Descendants of Alkneye Ampelkneke Dick Penangke (Apwetyerlanemearenye), whose children were Alantye Peltharre, Peltharre, Janet Altengirkwereke Peltharre and George Webb/Pound Akwempweke Peltharre;

(iii)    Atnweale - Descendants of Inkaltereke, whose children were Bob Cleary Kemarre, Irrpman-wilyinka Carbine Kemarre, Akneyempelkneyeke Dick Kemarre and Lame Jim Kemarre;

(iv)    Warrtharre - Descendants of Marnte Angele (or Marntelpwete) Penangke, whose children were six classificatory siblings, Fred Arreyemarnte Peltharre, Johnny Angele Peltharre, Jenny Anyethe Peltharre, Rosie Arlpalerwerke Peltharre, Charlie Bloomfield Tyetyanteye Peltharre and an unnamed Peltharre female; or

(b)    non-descent based connections that senior members of the landholding group have regard to, including:

(i)    spiritual identification with and responsibility for an estate;

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

(iii)    long-term residence in an estate;

(iv)    close kinship ties, including intermarriage;

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

(vi)    a more distant ancestral connection to an estate, for example, mother’s father’s mother;

(vii)    possession of traditional religious knowledge, authority and responsibility for

an estate;

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

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

7    The claim group’s system of laws and customs were established by the spiritual ancestors who travelled on, above or below the land in a creative era long ago, the Altyerre (glossed as the Dreaming). This established the physical and cultural landscape, the legal, social, kinship and religious systems, and the conditions for their continuity. This system is held to be unchanged from the time of its creation and has been transmitted unchanged to each succeeding generation by the ancestors.

8    Under the claim group’s system of traditional laws and customs, persons affiliated with a landholding group and its country through father’s father are apmerek-artweye and are the “owners” or “bosses” of the Dreaming and rituals associated with the country. Persons affiliated with a landholding group and its country through mother’s father are kwertengerle, “managers” or “workers”. Persons with connections to country through father’s mother are also called kwertengerle. Persons with connection through mother’s mother may result in the position of either apmerek-artweye or kwertengerle.

9    Apmerek-artweye and kwertengerle are jointly responsible for looking after country, an arrangement that requires the diffusion of knowledge amongst the members of a landholding group, subject to factors such as age, gender, residence and seniority.

10    Members of the claim group have been recognised as traditional Aboriginal owners of other land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and as native title holders under the Act:

(a)    Apwetyerlaneme (also Pwetyalaneme)

Harts Range Land Claim, Report No. 44. Findings, Recommendation and Report of the Aboriginal Land Commissioner, Mr Justice Olney, to the Minister For Aboriginal and Torres Strait Islander Affairs and to the Administrator of the Northern Territory. Commonwealth of Australia 1992. Pp 14, 19.

(b)    Warrtharre

Mt Riddock pastoral lease native title determination: Bloomfield on behalf of the members of the Akerte, Atwele, Irrerlerre, Ulpmerre and Warrtharre Landholding Groups v Northern Territory of Australia [2017] FCA 335.

Members of the Warrtharre landholding group were found to be traditional owners of Ankweteng country in the Alcoota Land Claim through mother’s father, father’s mother or mother’s mother connections: Alcoota Land Claim No. 48. Report and recommendations. Pp 29-31.

(c)    Atnweale (also Atnwarle)

Members of the Atnweale landholding group were found to be traditional owners of the Jinka Jervois Determination area: 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.

B.     THE PARTIES AND SUPPORTING MATERIALS

11    On 23 October 2020, the Huckitta application was filed in the Federal Court of Australia over the lands and waters of the Huckitta Pastoral Lease and the Tyarne Aboriginal Community Living area (Application).

12    The Application was made by the following persons:

(a)    Banjo Madrill (Warrtharre);

(b)    S Neale (deceased) (Atnweale);

(c)    Kevin Bloomfield (Warrtharre);

(d)    Raymond Webb (Apwetyterlaneme);

(e)    David Blue (Amapete); and

(f)    Herbie Bloomfield (Warrtharre).

(together, the Applicant).

13    The respondent to the Application is the Northern Territory of Australia (Respondent).

14    Negotiations for a consent determination have been progressing for several years.

15    On 21 April 2021, the Applicant provided the Respondent with several reports prepared by expert anthropologists, on a without prejudice basis, including:

(a)    a report concerning trade and exchange of resources by Aboriginal people in the wider central Australian region;

(b)    a summary anthropology report regarding the laws and customs of the Applicant; and

(c)    a further anthropology report dealing specifically with laws and customs in relation to the taking and use of resources.

(together, Anthropological Reports).

16    The Anthropological Reports and other materials were assessed by the Respondent’s expert anthropologist, Jeffrey Stead. Correspondence was then exchanged between the Applicant and the Respondent. Subsequently, a supplementary report was provided by the Applicant to the Respondent that addressed all the queries that Mr Stead had raised (Supplementary Report).

17    The Applicant and Respondent have reached an agreement that the claim group is comprised of persons who hold both exclusive and non-exclusive native title rights and interests within the meaning of s 223(1) of the Act in various parts of the Determination Area, except where native title is extinguished by public works.

18    On 20 October 2021, the Respondent provided the Applicant with the Respondent’s tenure and extinguishment contentions, on a without prejudice basis. The Applicant and the Respondent then exchanged further correspondence about outstanding tenure and public works issues. These issues have now been resolved.

19    On 28 March 2024, the solicitor for the Respondent was instructed that it had received the approval of the Northern Territory Government to agree to a consent determination substantially in the form of the “Huckitta Native Title Determination Application Minute of Proposed Orders and Determination of Native Title By Consent” (Agreement).

20    On 3 April 2024, the Agreement was signed by all parties.

21    Based on those materials, the Applicant and Respondent have now requested the Court make this consent determination of native title.

C.     STATUTORY FRAMEWORK

C.1.    Section 87(1) of the Act

22    For a determination of native title to be made pursuant to s 87 of the Act by consent without holding a hearing, the following requirements must be satisfied:

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

(b)    the Applicant and Respondent have reached an agreement on the terms of orders relating to the proceedings, and matters arising out of those terms (s 87(1)(a) and (aa));

(c)    the Applicant and Respondent have reduced their agreement to writing, the agreement has been signed by or on behalf of the parties, and it has been filed with the Court (s 87(1)(b));

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

(e)    it appears appropriate to the Court to make an order consistent with the terms of the order sought (s 87(1A) and s 87(2)).

23    I am satisfied that the requirements of s 87(1) of the Act are met in the present Application. The notification period for the Application ended on 10 May 2021 (s 87(1)). The Agreement is an agreement by the Applicant and the Respondent on the terms of an order of the Court in relation to the proceedings (s 87(1)(a) and (aa)). The Agreement is in writing, has been signed by or on behalf of the Applicant and the Respondent and was filed with the Court (s 87(1)(b)).

24    In order to be satisfied that the orders sought in the Agreement are within the power of the Court, consideration must be given to other requirements under the Act. For the following reasons, I am also satisfied that the proposed order and the terms of the proposed native title determination are within the Court’s power to make (s 87(1)(c)):

(a)    there is no challenge to the validity of the Application. I am satisfied that the Application was authorised in a manner compliant with the Act and is a valid application;

(b)    there is no approved determination of native title in relation to the Determination Area (s 13(1)(a)), and the terms of s 68 of the Act are not applicable;

(c)    there are no proceedings before the Court relating to native title determination applications that cover any part of the Determination Area which would otherwise require orders to be made under s 67(1) of the Act;

(d)    the form of the proposed determination outlined in the Agreement complies with s 94A of the Act by setting out the details of the matters required by s 225 of the Act;

(e)    the proposed determination concerns rights and interests which the Australian common law is able to recognise (s 223(1)(c)); and

(f)    the requirements of s 87 of the Act are otherwise satisfied.

25    I turn now to consider whether the proposed order is appropriate (s 87(1A) and s 87(2)).

C.2.    The applicable principles

26    The requirement that the Court be satisfied that the order is “appropriate” is present in both s 87 and s 87A of the Act. The applicable principles are the same.

27    The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. The power in s 87 of the Act must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J).

28    The primary task of the Court is to determine whether there is an agreement between the parties and whether that agreement was freely entered into on an informed basis: Nangkiriny v Western Australia (2002) 117 FCR 6; [2002] FCA 660 at [14] (North J); Ward v State of Western Australia [2006] FCA 1848 at [9] (North J); Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Bennett J).

29    The Court must be satisfied, however, that the relevant 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 at [29] (Emmett J). The state has a public responsibility to ensure that its agreement to the order proposed is in the interests of the community it represents and there is a sufficient basis for concluding that the proposed determination is capable of satisfying the requirements of s 225 of the Act: Davey on behalf of the Mayala #2 Native Title Claim Group v State of Western Australia [2019] FCA 1137 at [18] (Bromberg J).

30    The Court is not required to embark upon an inquiry as to the merits of the claim to satisfy itself that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The Court will, however, consider evidence for the limited purpose of determining whether the state has made a rational decision and is acting in good faith: Munn at [29]-[30].

31    In Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801, Bromberg J stated at [45]-[46] that in determining whether the requirements in s 87(2) of the Act have been met, the Court would need to have an understanding of the process that led to the agreement and, in particular, how the state or territory went about assessing the underlying evidence as to the existence of native title, which would require the Court to consider whether:

(a)    the parties have independent and competent legal representation: Munn at [29]; Lovett at [39]-[40];

(b)    the terms of the proposed order are “unambiguous and certain as to the rights declared”: Munn at [32]; and

(c)    the agreement has been preceded by a mediation process: Nangkiriny at [6]; Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] (Branson J); Lovett at [41]-[42].

32    The parties drew to the Court’s attention an apparent divergence of authority regarding the identification of the parties to a native title determination given the recent decision of this Court in Arnaboldi v State of Queensland [2023] FCA 788 (SC Derrington J). In Arnaboldi, the Court was asked to resolve a non-claimant native title determination application under s 86G of the Act. The parties submit that the decision of this Court in Arnaboldi ought not to be followed.

33    Section 86 enables the resolution of unopposed applications without a hearing, if each respondent party notifies the Court in writing that the proposed orders are not opposed. Justice SC Derrington considered that the language of s 84(4) required the State Minister to be a party, rather than the State qua State. Her Honour concluded that given the relevant State Minister was not also a party, the State Minister had not consented in writing pursuant to s 86G(2) of the Act and the Court was not able to conclude the application was “unopposed”.

34    It is reasonably arguable that the reasoning in Arnaboldi could also apply to s 87(1)(aa) of the Act, which requires that all parties to the proceeding are parties to the agreement as to the terms of a proposed order. As acknowledged by SC Derrington J in Arnaboldi at [10], however, any requirement that the State Minister, rather than the State, is a necessary party to a consent determination is inconsistent with “numerous” existing authorities. Any departure from those authorities would have profound consequences for the validity of previous consent determinations of native title.

35    For present purposes, it is not necessary to reach any concluded view on this issue. The Territory Minister in this case specifically endorsed the solicitor for the Northern Territory as the legal representative of the Respondent to consent to the Agreement. There was no evidence of any such endorsement or involvement of the relevant Minister in Arnaboldi. Moreover, the principles governing consent determinations pursuant to s 87 of the Act were considered in the decision of the Full Court in McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191 at [27]-[32] (Perry, SC Derrington and Colvin JJ). The consent determination in Jangga was founded on the consent of the State of Queensland, not the State Minister. For present purposes, it is significant that although Jangga was determined after Arnaboldi, neither party in Jangga appears to have raised any concern about the Court’s power to make the consent determination in the absence of any consent from the State Minister and the Full Court made no reference to Arnaboldi in their reasons for judgment or expressed any concern that the State Minister was not a party to the agreement giving rise to the consent determination.

36    Further as submitted by the Applicant and Respondent, I am satisfied that the progress of this matter including the steps taken by the respondent in the proceeding, are sufficient to constitute implied notice to the Court that it is the intention of the Northern Territory and the Territory Minister that the Territory qua Territory seeks to be a respondent to these proceedings and to carry out the Northern Territory’s role in the capacity of parens patriae.

D.     SUBMISSIONS

37    In their joint submissions, the Applicant and the Respondent submit that it is appropriate that the Court make a determination in the terms of the Agreement because:

(a)    the Applicant and the Respondent were legally represented throughout;

(b)    the Northern Territory of Australia, as the respondent, obtained searches of land tenure, mining and other relevant interests to determine the extent of “other interests” within the Determination Area and provided copies of those searches to all parties;

(c)    the Applicant and the Respondent have agreed on the nature and extent of interests in relation to the Determination Area, and those interests are described at paragraph 11 of the Agreement (s 225(c));

(d)    there are no other proceedings before the Court relating to native title determination applications that cover any part of the claim area which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and (2)); and

(e)    the Northern Territory of Australia, as the Respondent, has played an active role in the negotiation of the Agreement. In doing so, the Northern Territory of Australia, acting on behalf of the community generally, having had regard to the requirements of the Act and having conducted a thorough assessment process, is satisfied that the proposed determination is justified in all the circumstances.

38    In the Statement of Joint Agreed Facts made by the Applicant and the Respondent, it is stated that the Agreement was reached on the basis of the materials and information in the Application, including the affidavits which accompany the Application, the Anthropological Reports, the Supplementary Report and other materials exchanged.

39    A summary of the key factual matters which were agreed is set out in Annexure A to the Statement of Joint Agreed Facts. The annexure contains a summary of key factual matters and is relevant to the existence of native title rights and interests pursuant to the traditional laws and customs of the claim group. Although it involves some repetition of matters already discussed, it is convenient to set out those facts by including here the text of that annexure:

Statement of matters relevant to connection

The Determination Area

1. Spinifex sandplains, acacia woodlands and mulga on low plains cover the southern portion of the Determination Area, while the north-eastern section is dominated by hills and the Dulcie Range. Significant watercourses within Huckitta pastoral lease (Perpetual Pastoral Lease 990, Huckitta) include the Marshall River, which runs south-east across the centre of the Determination Area; the Plenty River, which bisects the southern portion; and Yam Creek, which runs north-south along the eastern boundary. They only flow during significant rain events. Numerous springs and rockholes are located in the Dulcie Range within and to the north-east of the Determination Area.

2. The Determination Area was occupied by the antecedents of the claim group from time immemorial. The first European expedition to cross the Determination Area was carried out by Henry Barclay in 1878 while surveying the country north of Alice Springs between the Overland Telegraph Line (completed in 1872) and the Queensland border. Barclay ‘ran down’ an Aboriginal man in the vicinity of the Jervois Range for information on local waters. The man Barclay captured was in possession of an iron axe, indicating that European materials were circulating amongst central Australian Aboriginal people prior to, or at the time of the arrival of the first European explorers in the region.

3. Charles Winnecke later assumed leadership of the survey party, and in early June 1880, approaching the Determination Area from the north, he reported driving approximately 200 Aboriginal people away from a native well. The following day about 100 people came into his camp. On 10 June 1880 his party camped in the bed of the Plenty River within the Determination Area. Indicative of Aboriginal presence on, or close to, the area, he noted in references to tree blazes previously made by Barclay, ‘I had some difficulty in distinguishing them from the marks made by the natives’.

4. In 1882, explorer and surveyor David Lindsay travelled through the Plenty region and followed the Plenty River across the Determination Area. His writings make numerous references to signs of Aboriginal occupation of the region such as native wells, old camps, evidence of ‘opossum’ hunting, and fresh tracks.

5. The first mob of cattle was driven through the area in 1883, and European occupation commenced by the late 1880s, catalysed by garnet and mica mining and the taking up of land for cattle grazing. Pastoral leases were first granted over the Determination Area in the 1890s. In the subsequent decades, many antecedents and members of the claimant group have lived or worked on Huckitta station. On 6 August 2010, the Huckitta pastoral lease was purchased by Huckitta Aboriginal Corporation. Membership of that corporation is confined to adult members of the native title claim group.

Relevant society, and laws and customs

6. The Determination Area falls within country associated with Eastern Arrernte laws and customs. Pursuant to those laws and customs, rights in the Determination Area are held by the members of four landholding groups: Amapete, Apwetyerlaneme, Atnweale, and Warrtharre. The name for each estate derives from a particularly significant sacred site located within it.

7. The members of the four landholding groups identify with the Arrernte language, as well as the closely related dialects Akarre and Akarrwelenye. They share linguistic commonalities, as well as substantially the same system of law and custom, with other Arrernte peoples, as well as other nearby groups such as Alyawarr, Anmatyerr and Kayteyte. These groups form part of the wider social region referred to as the Arandic region (sometimes referred to as a society).

8. Under their laws and customs, country is divided into tracts of land (estates) which have their origin in the Altyerre – the creative period when Dreaming Beings are believed to have travelled across the land. Their actions gave rise to all plant and animal species and physical features of the landscape. The land is therefore an inalienable religious resource. Dreaming Beings are also considered responsible for bestowing the ritual and cultural institutions that are the basis of the laws and customs which operate throughout the Arandic region.

9. Dreaming Beings travelled across the land comprising the country. Their travels are celebrated in ritual and songs, and it is believed their essence imbues sacred sites and tracks located throughout the Determination Area. Particularly significant Dreaming Beings for the Determination Area include Aweye (Boys), Kwatye (Rain), Arlatyeye (Pencil Yam), Arenge (Euro), Ure (Bushfire), Werlatye (Breast) and Utnerrengayte (Edible Grub from Emu Bush).

10. The claimants’ term for an estate is ‘apmere’, which is also used for ‘camp’, and ‘home/house’ depending on the context. The rights and responsibilities of the four landholding groups in relation to their respective estates are mutually recognised by the claimants and by neighbouring landholding groups from outside the Determination Area.

11. Landholding groups are primarily composed through descent from a person’s grandparents. Four lines of filiation are relevant:

a. father's father (arrenge in Eastern Arrernte) – resulting in the position of apmerek-artweye;

   b. mother's father (atyemeye) – resulting in the position of kwertengerle;

   c. father's mother (aperle) – resulting in the position of kwertengerle;

d. mother's mother (ipmenhe) – resulting in the position of either apmerek-artweye or kwertengerle, depending on wider social circumstances.

12. Apmerek-artweye (a term which can be glossed as owners) are believed to be incarnated from the Dreaming Beings that originally inhabited the land, and are therefore fundamentally identified with the country. Kwertengerle (managers or policemen) do not possess this spiritual identity but share rights and interests in the land and resources of the Determination Area through their descent and their affiliation with apmerek-artweye, who require their presence and support in all estate-related decision making matters.

13. Thus, the apmerek-artweye and kwertengerle together comprise the descent-based members of the landholding group. Their roles are different, but complementary, and often must be carried out jointly. They exercise jointly the vital responsibilities of looking after country and sacred sites, and for performing ceremonies. They speak for country together. As senior claimant Herbie Bloomfield Penangke (Warrtharre apmerek-artweye) explains: “We own everything on our country and work together with our neighbours, Apwetyerlaneme, they are our policeman, our bouncers, kwertengerle.”

14. In some circumstances, persons may become non-descent based members of a landholding group on the basis of a range of criteria as set out in Schedule A, paragraph 9 of the Application. However, a person’s incorporation into a landholding group in this way is always subject to the acceptance of the senior descent based members.

15. A central concept in the social and cultural organisation of the claimants is the division of people, sacred sites, Dreaming Beings, areas of land, and species of animals and plants into “skins”. Two systems operate in the Determination Area, one involving division into four skins (the section system) and the other into eight skins (the subsection system). Among other social functions, skins specify categorical relationships between Aboriginal people – any two people of any given skins will be considered related in a particular way, regardless of their biological relationship. Examples include relations such as siblings or potential spouses.

16. Each section and subsection is named in the Eastern Arrernte language, and the two systems operate compatibly with one another. All four estates are associated with a pair of sections or subsections. The earliest remembered ancestors of each estate were associated with the same pair of sections or subsections as the current apmerek-artweye and significant Dreaming Beings tied to the estate. All human and non-human things are therefore considered related on a fundamental level.

17. The skin affiliations of the estates in the Determination Area are as follows:

   a. Amapete: Penangke / Peltharre subsections;

b. Apwetyerlaneme: Peltharre / Kngwarraye subsections and Peltharre / Penangke sections.

   c. Atnweale: Kemarre / Perrurle subsections; and

   d. Warrtharre: Penangke / Peltharre sections.

18. Under traditional law and custom, the claimants’ responsibility for both the spiritual and secular management of their country invests them with both ritual jurisdiction and economic control over the land and resources of estates within the Determination Area. As a result, the rights held by the claimants pursuant to their traditional law and customs are broad in nature.1

19. The claimants have the right to speak for country. Visitors to an estate must seek permission from the apmereke-artweye to access the estate and its resources. 2 The role of kwertengerle in controlling access is usually to act as a spokesperson and intermediary between visitors and apmereke-artweye. Senior claimants are also responsible for administering penalties for unauthorised entry to an estate.

20. Senior claimants are familiar with the resources on their country and can advise visitors where these can be found, as well as the location of ritually dangerous sites which visitors must avoid. This ensures that those unfamiliar with the country do not inadvertently trespass upon, or damage, sacred sites. Knowledge of the totemic landscape and the ritual protocols for interacting with it enables claimants to safely communicate with the spiritually powerful Dreaming Beings that inhabit the country. Claimants will sing the song for sacred sites such as rockholes when approaching them, and speak to the spirits of the country in order to avoid becoming sick.

21. The claimants, and their ancestors before them, had a traditional right to make use of all the resources of the Determination Area. They exploit a wide range of resources within Huckitta including meat, plant and insect foods; water; pituri (a form of tobacco); ochre; stone; wood for making implements and sacred objects, fire making, for graves, and for shelters; spinifex resin; feathers for decorative and ceremonial purposes; and bush medicine. Their right to access and use the resources on Huckitta derives from their ownership of the country and its resources under traditional laws and customs.

22. Under their laws and customs, the claimants can make use of these resources for whatever purpose they consider appropriate. They have made commercial use of resources such as prickly wattle seed, feathers, dingo scalps, gemstones and traditionally manufactured implements.3

Continued Connection

23. Several senior members of the claim group were born and grew up in the Determination Area, particularly in the creek near the Huckitta homestead and in the Plenty River mica mining area. Many claimants have worked in the mining or pastoral industries in the Determination Area.

24. Most claimants have maintained lifelong connections with the Determination Area, through hunting, gathering bush food and medicine, using water from soakages, hollow trees and rockholes, and following traditional walking tracks.

25. Some claimants continue to live on the Determination Area, and many others live in the near vicinity, in communities and outstations such as Atitjere, Mount Eaglebeak and Ilparle.

26. Claimants were taught about, and shown, their country by their elders. They learned about the cultural geography of the Determination Area via songs and stories from their ancestors, and by interacting with the area in company with their elders. This teaching continues today. Senior members of the claimant group pass on localised knowledge to younger generations in culturally appropriate contexts and locations.

(Footnotes omitted).

E.    CONSIDERATION

E.1.     Section 87 of the Act

40    Having regard to the above matters, I am satisfied that the Northern Territory of Australia, acting on behalf of the broader community, has taken a real interest in the proceeding and has engaged in a thorough examination of the Application such that it is properly satisfied that there is a credible basis for making the proposed determination. I am therefore satisfied that the proposed order is appropriate and that the requirements made by s 87 of the Act have been met.

E.2.     Nomination of a prescribed body corporate

41    The Agreement seeks an order to the effect that the native title in the Determination Area is not to be held on trust. Accordingly, there is no need to make a nomination under s 56 of the Act. In these circumstances, however, s 57(2) of the Act requires certain steps to be taken to determine which prescribed body corporate is to perform the functions prescribed by s 57(3) of the Act.

42    The Agreement seeks a determination that the Huckitta Aboriginal Corporation (ICN: 7371) be the prescribed body corporate for the purpose of s 57(2) of the Act and to perform the functions prescribed in s 57(3) of the Act, after becoming a registered native title body corporate. That agreement is supported by the affidavit of Su Sze Ting affirmed on 24 March 2024, in which Ms Ting deposes that at a meeting of the claim group held on 29 November 2016 at Atitjere, the claim group authorised that Huckitta Aboriginal Corporation be the agent prescribed body corporate in relation to the claim. Ms Ting also deposes that amendments to the constitution of the Huckitta Aboriginal Corporation were approved by a delegate of the Registrar of Indigenous Corporations on 27 March 2017, and that at further meetings of the claim group, on 22 and 23 October 2017, the native title claimants confirmed their nomination of Huckitta Aboriginal Corporation to be the agent prescribed body corporate for the Application.

43    Accordingly, as required by s 57(2)(b) of the Act, I am satisfied that the Huckitta Aboriginal Corporation is to be the prescribed body corporate to perform the functions prescribed in s 57(3).

F.     DISPOSITION

44    I am satisfied that the requirements of the Act are met and that it is appropriate that the orders and the determination of native title proposed by the Applicant and the Respondent should be made.

45    It is important to note that those orders do not create native title in the Determination Area. Instead, this consent determination marks the recognition by the Australian legal system of the long held and pre-existing native title in the Determination Area. It recognises that which has always existed but, regretfully, has never before been acknowledged by Australian law.

46    The Court congratulates the parties on reaching their agreement and will make orders in the terms proposed by them.

Associate:

Dated:    22 May 2024

SCHEDULE OF PARTIES