FEDERAL COURT OF AUSTRALIA

First Peoples of the Millewa-Mallee Native Title Claim Group v State of Victoria [2025] FCA 799

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding VID 630 of 2015 has made a native title determination application (FPMM Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (NTA).

B.    The Applicant, the First Respondent – the State of Victoria – and the other Respondents to this proceeding (together, the parties) have reached agreement as to the terms of a determination which is to be made in relation to part of the land and waters covered by the FPMM Application.

C.    The terms of the agreement:

(a)    involve the making of consent orders for a determination pursuant to sections 87 and 94A of the NTA in the form set out at Attachment A (Determination); and

(b)    are recorded in a Minute of Proposed Consent Determination of Native Title, signed by (or on behalf of) the parties, and filed with the Court by the Applicant.

D.    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 traditional laws acknowledged and traditional customs observed by them, will be recognised as the Native Title Holders (as defined in the Determination) for the area of land and waters described in Schedule 1 to the Determination.

E.    The State of Victoria and the Applicant further acknowledge:

(a)    the importance of this consent determination;

(b)    that this recognition of native title is evidence that from time immemorial, the First Peoples of the Millewa-Mallee and their ancestors have practised their traditional laws and customs, and nurtured their Country and been cared for by it, through their spiritual, cultural, material and economic connections to land, water and resources in the area;

(c)    the pain, anger, sadness and hurt experienced by the native title group, arising from the impacts of colonisation and Government policies, laws, and practices that have negatively affected generations of Traditional Owners in the determination area, causing harm to culture through displacement and dispossession of land, since the time of sovereignty;

(d)    that though these practices have caused injustice and diminished freedoms, this native title consent determination is a testament to the ongoing strength and resilience of the traditional law and custom of the First Peoples of the Millewa-Mallee in maintaining and protecting their connection to the community, culture and Country, and to the importance of Country as a source of spiritual and physical health and sustenance;

(e)    their intention to forge a renewed and enduring relationship, founded on principles of mutual respect, fairness and equality, partnership, good faith and trust. Underpinning all of these principles, the State looks forward to a future of working together to support the Native Title Holders’ broader social, economic and cultural aspirations in their Country;

(f)    their intention to negotiate in good faith, with the view of entering into an agreement or agreements with respect to the application of section 47C of the NTA in the determination area, which, if agreement is reached and subject to satisfactory completion of relevant requirements under the NTA, will result in an application by the registered native title body corporate under ss 13 and 61 of the NTA to vary the determination on the grounds in s 13(5)(c) of the NTA, enabling the recognition, subject to the laws of Victoria and the Commonwealth and in accordance with traditional law and custom, of exclusive possession native title rights and interests in certain park areas, and of non-exclusive native title rights and interests in other park areas;

(g)    their intention that, where the recognition of exclusive possession native title rights is achieved through future agreement making, they will also negotiate in good faith an Indigenous Land Use Agreement that supports the principles set out in (e) above and which describes how any exclusive possession native title land will be managed to the benefit of both the Applicant and the State.

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the NTA and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms provided in Attachment A.

2.    First People of the Millewa Mallee Aboriginal Corporation (ICN: 8264) is to:

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

(b)    perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate in relation to the Determination Area.

3.    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

BY CONSENT, THE COURT DETERMINES THAT:

Existence of native title (s 225 of the NTA)

1    Native title exists in relation to the whole of the Determination Area.

The Native Title Holders (s 225(a) of the NTA)

2    The native title rights and interests in the Determination Area are held by the Native Title Holders, who are those living Aboriginal people who satisfy all three of the following criteria:

(1)    are descended (including by adoption in accordance with traditional laws and customs) from one or more of the following identified ancestors:

(a)    John Perry;

(b)    Nelly Perry;

(c)    the mother of Sarah Mayne; and

(2)    identify themselves as having rights and interests in the Determination Area under the traditional laws and customs applicable to the Determination Area, as:

(a)    Ngintait, Latji Latji, or Nyeri Nyeri; and/or

(b)    a member of the native title holding group; and

(3)    are recognised by the Native Title Holders as having rights and interests in the Determination Area under the traditional laws and customs applicable to the Determination Area, as:

(a)    Ngintait, Latji Latji or Nyeri Nyeri; and/or

(b)    a member of the native title holding group.

The nature and extent of native title rights and interests (ss 225(b) and (e) of the NTA)

3    Subject to orders 6 and 7 (which are qualifications on the native title rights and interests), the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 2 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.

4    Subject to orders 5 to 7 (which are qualifications on the native title rights and interests), the nature and extent of the native title rights and interests in relation to each part of the Determination Area, other than those parts of the Determination Area referred to in Schedule 2, are the following rights and interests:

(1)    the right to have access to, remain on (including live on and belong to), use and enjoy that part;

(2)    the right to take, and use, the resources of that part;

(3)    the right to protect and maintain areas, sites, objects and places of significance under traditional law and custom on that part; and

(4)    the right to invite onto that part those people who, although not Native Title Holders, are:

(a)    spouses or partners of Native Title Holders; or

(b)    people permitted in accordance with traditional law and custom for the performance of cultural activities.

5    The native title rights and interests referred to in order 4 do not confer possession, occupation, use and enjoyment of those parts to the exclusion of all others.

6    The native title rights and interests referred to in orders 3 and 4 are subject to and exercisable in accordance with:

(1)    the traditional laws and customs of the Native Title Holders; and

(2)    the laws of the State and Commonwealth, including the common law.

7    Notwithstanding anything in this Determination:

(1)    There is no native title in the Determination Area in, or in relation to:

(a)    minerals as defined in the Mineral Resources (Sustainable Development) Act 1990 (Vic), as in force at the date of the Determination and as are owned by the Crown;

(b)    petroleum as defined in the Petroleum Act 1998 (Vic), as in force at the date of the Determination and as is owned by the Crown; and

(c)    groundwater as defined in the Water Act 1989 (Vic), as in force at the date of the determination.

(2)    The nature and extent of native title rights and interests in relation to water in any waterway is the non-exclusive right to take, use and enjoy that water for domestic and ordinary use.

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

8    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 3 (other interests).

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

9    Except as otherwise provided for by law, the relationship between the native title rights and interests described in orders 3 and 4 and the other interests is as follows:

(1)    the Determination does not affect the validity of those other interests; and

(2)    except as provided in (3), to the extent of any inconsistency between the other interests described in Schedule 3 and the continued existence, enjoyment or exercise of the native title rights and interests:

(a)    the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

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

(3)    The relationship between the native title rights and interests and the other interests referred to in paragraphs 6 to 8 of Schedule 3 is that, those interests, and rights held under them, co-exist with the native title rights and interests.

Determination of the status of parcels within Determination Area

10    Without affecting the operation of any of orders 3, 4, or 9 above, the State and the Native Title Holders have:

(1)    agreed in writing to a framework which will apply when they wish to establish the native title status of a parcel of land within the Determination Area, or the location and boundaries of any area where extinguishment is required to be disregarded by operation of ss 47A or 47B of the NTA;

(2)    in Schedule 5, reproduced that framework as it stands and is agreed as at the date of the Determination, on the understanding it may subsequently be varied as between the State and the registered native title body corporate; and

(3)    agreed that any rights or interests conferred by that framework do not form part of this determination made for the purposes of ss 94A or 225 of the NTA.

11    A party has liberty to apply to the Court on 60 days’ written notice to establish the native title status of an area of land, or the location or boundaries of any area where extinguishment is required to be disregarded by operation of ss 47A or 47B of the NTA.

Definitions and interpretation

12    In this Determination, including its schedules, unless the contrary intention appears:

(1)    The following words and expressions have the following meaning:

(a)    Crown means the Crown in right of Victoria, or the Crown in right of the Commonwealth, as the case requires;

(b)    Determination Area means the land and waters described in Part 2 of Schedule 1 to the extent they are within the External Boundary, and which are depicted on the maps at Schedule 6;

(c)    External Boundary means the written description in Part 1 of Schedule 1;

(d)    land and waters respectively have the same meanings as in the NTA;

(e)    LTVA means the Land Titles Validation Act 1994 (Vic);

(f)    NTA means the Native Title Act 1993 (Cth); and

(g)    waterway has the same meaning as in s 3 of the Water Act 1989 (Vic) as in force at the date of this Determination,

and otherwise;

(2)    words and expressions have the same meaning as they have in the NTA.

13    In the event of an inconsistency between the written description of an area and the depiction of that area on the maps in Schedule 6, the written description prevails.

SCHEDULE 1 – DETERMINATION AREA

Part 1 – External Boundary

1    The application area covers all the land and waters within the external boundary described as:

Commencing at the northern junction of the South Australian and Victorian borders, and continuing generally south easterly along the Victorian border to its junction with the New South Wales border; then generally easterly and generally south easterly along the Victoria / New South Wales border to Latitude 34.421167° South; then westerly to a point on the centreline of an unnamed track at Longitude 142.350929° East, Latitude 34.421150° East; then westerly along the centreline of that track to Barko Road; then southerly along the centreline of that road to Hards Road (Bullock Swamp Road); then generally westerly; north westerly, again westerly and south westerly along the centreline of that road, Iraak Lake Road (around the southern portion of Lake Iraak) and Birkins Road to the Calder Highway north of Carwarp township; then generally south easterly along the centreline of the Calder Highway to an unnamed track in the locality of Hattah at approximate Latitude 34.760831° South; then generally south westerly along the centreline of that track across the Yelta Line railway to Camerons Road; then generally north westerly and westerly along the centreline of that road, Last Hope Track and Pheenys Track to the South Australian border; then generally northerly along the South Australian / Victorian border back to the commencement point.

Part 2 – Land and waters

2    All land and waters within the External Boundary form part of the Determination Area except to the extent they are excluded in accordance with paragraphs 3 and 4 below.

3    The following areas of land and waters are excluded from the Determination Area:

(1)    any area that is subject to any of the following kinds of acts as they are defined in the NTA where the act in question is attributable to the Commonwealth, or the LTVA where the act in question is attributable to the State of Victoria, and where native title rights and interests have been extinguished:

(a)    category A past acts;

(b)    category A intermediate period acts;

(c)    category B past acts that are wholly inconsistent with the continued existence of all native title rights and interests; and

(d)    category B intermediate period acts that are wholly inconsistent with the continued existence of all native title rights and interests.

(2)    any area in relation to which a previous exclusive possession act as defined in s 23B of the NTA (including s 23B(7)) was done in relation to the area and the act was attributable to the State where native title rights and interests have been extinguished pursuant to s 23E of the NTA and ss 13H or 13I of the LTVA, including but not limited to;

(a)    447 Dow Avenue, Irymple, land description Lot 10 on Plan of Subdivision 082409 (10/PS082409) and currently entered on the Certificate of Title Register as Volume 08773 Folio 533;

(b)    186 – 190 San Mateo Avenue, Mildura, land description Lot 1 on Title Plan 677419U (1/TP677419U) and currently entered on the Certificate of Title Register as Volume 04858 Folio 483;

(c)    145 Oak Avenue, Birdwoodton, land description Crown Allotment 59A, Section E, Parish of Mildura (Crown Folio Volume 11755 Folio 029);

(3)    any area in relation to which a previous exclusive possession act as defined in s 23B of the NTA (including s 23B(7)) was done in relation to the area and the act was attributable to the Commonwealth where native title rights and interests have been extinguished pursuant to s 23C of the NTA;

(4)    any area in relation to which a public work, as defined in s 253 of the NTA, validly constructed, established or situated after 23 December 1996, where s 24JA of the NTA applies, and which wholly extinguished native title; and

(5)    any area where native title rights and interests have otherwise been validly wholly extinguished,

except to the extent any of ss 47A or 47B of the NTA apply to a part or the whole of the relevant area.

4    For the avoidance of doubt, the following areas are excluded from the Determination Area:

(1)    All of the land and waters the subject of the following native title determinations:

(a)    VCD2005/001 Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples No. 1 as determined 13th December 2005;

(b)    VCD2005/002 Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples No. 2 as determined 13th December 2005; and

(c)    VCD2005/003 Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples No. 3 as determined 13th December 2005.

(2)    All of the land and waters the subject of the following Indigenous Land Use Agreement:

(a)    VI2004/008 Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk as registered 11 November 2005.

SCHEDULE 2 – WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

1    The areas that are subject to the native title rights and interests described in order 3 of the Determination are any area of land or waters subject to section 47A of the NTA.

SCHEDULE 3 – OTHER INTERESTS

The other interests, as at the date of the Determination, are as follows:

1    Any right of an employee or agent or instrumentality of the Crown, or of any local government or other statutory authority, to access land or waters in the Determination Area as required in the performance of statutory or common law duties.

2    The interests of the Crown in any capacity, or a local government body or other statutory authority, in any public works whose construction or establishment:

(1)    was valid or has been validated;

(2)    did not extinguish native title (including as a consequence of validation); and

(3)    commenced prior to the date of the Determination.

3    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746), their related bodies corporate and any of their successors in title:

(1)    as the owner(s) or operator(s) of telecommunications facilities installed within the Determination Area;

(2)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including existing rights:

(a)    to inspect land;

(b)    to install, occupy and operate telecommunication facilities; and

(c)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(3)    for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(4)    under any lease, licence, permit, access agreement or easement relating to their telecommunication facilities in the Determination Area.

4    The interests of Powercor Australia Limited (and its related entities), including:

(1)    rights and interests as an entity holding a distribution and transmission licence under the Electricity Industry Act 2000 (Vic);

(2)    rights and interests created pursuant to the Electricity Industry Act 2000 (Vic);

(3)    rights and interests as owner or operator of electrical facilities and infrastructure (facilities) installed within the Determination Area;

(4)    rights of access for the performance of their duties by employees, agents or contractors of Powercor Australia Limited to its facilities in, and in the vicinity of, the Determination Area;

(5)    rights and interests under Order in Council published in Victorian Government Gazette No. G29 18 July 2002 (page 1704) pursuant to s 138A(11) of the Land Act 1958 (Vic) to occupy without licence any stratum of Crown land on, over or under government roads for electricity services;

(6)    rights and interests pursuant to leases, subleases, licences and easements in respect of Crown land in the Determination Area.

5    Valid or validated rights or interests not otherwise referred to in this Schedule 3 which have been:

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

(2)    otherwise conferred by statute.

6    So far as confirmed pursuant to s 15 of the LTVA as at 24 November 1998, any existing public access to and enjoyment of:

(1)    waterways;

(2)    beds and banks or foreshores of waterways;

(3)    beaches; and

(4)    areas that were public places at the end of 31 December 1993.

7    Any public right to fish.

8    Any public right to navigate.

SCHEDULE 4 – AREAS WHERE EXTINGUISHMENT IS TO BE DISREGARDED PURSUANT TO THE NTA

Part 1 – Areas to which section 47A of the NTA applies

1    Within the Determination Area there are areas where, on 8 October 2015 when the application was made, the area was held expressly for the benefit of, or was held on trust, or reserved, expressly for the benefit of Aboriginal peoples or Torres Strait Islanders, within the meaning of s 47A(1)(b)(ii) of the NTA.

2    On 8 October 2015 when the application was made, one or more members of the native title claim group occupied each of the areas described in [1] for the purposes of s 47A(1)(c) of the NTA.

3    On the basis of [1] and [2], and s 47A(1) of the NTA, s 47A applies to each of the areas described in [1].

Part 2 – Areas to which section 47B of the NTA applies

4    Within the Determination Area there are areas where, on 8 October 2015 when the application was made, the area was not:

(1)    covered by a freehold estate or a lease, within the meaning of s 47B(1)(b)(i); or

(2)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area was to be used for public purposes or a particular purpose, within the meaning of s 47B(1)(b)(ii); or

(3)    subject to a resumption process, within the meaning of s 47B(1)(b)(iii).

5    On 8 October 2015 when the application was made, one or more members of the native title claim group occupied each of the areas described in [4] for the purposes of s 47B(1)(c) of the NTA.

6    On the basis of [4] and [5], and s 47B(1) of the NTA, s 47B applies to each of the areas described in [4].

SCHEDULE 5 – FRAMEWORK FOR DETERMINING THE NATIVE TITLE STATUS OF LAND OR WATERS

1    Where the State or the Native Title Holders (or the registered native title body corporate) wish to establish the native title status of an area of land within the Determination Area, or the location and boundaries of any area where extinguishment is required to be disregarded by operation of ss 47A or 47B of the NTA, the State and the registered native title body corporate, on behalf of the Native Title Holders, are to engage in good faith consultation, including in writing, within a reasonable timeframe as to the native title status of the relevant land.

2    If, after a reasonable period of time, the parties cannot agree between themselves the native title status of the relevant land parcel, either party has liberty to apply to the Court on 60 days’ written notice to establish the native title status of the area, or the location and boundaries of any area where extinguishment is required to be disregarded by operation of ss 47A or 47B of the NTA.

3    The State and the Native Title Holders agree that neither of the processes set out above are intended to be used to progress a large-scale tenure analysis of parcels within the determination boundary, but rather, on a parcel-by-parcel basis as and when required.

SCHEDULE 6 – MAP

REASONS FOR JUDGMENT

BENNETT J:

1    By proposed signed orders filed with the Court, supported by submissions and several affidavits, the parties have sought a determination of native title under s 87 of the Native Title Act 1993 (Cth) (NTA) (the FPMM Application).

2    The parties to the FPMM Application are the First Peoples of the Millewa-Mallee Native Title Claim Group (Applicant), and the State of Victoria (State), the Commonwealth of Australia, Powercor Australia Ltd, Amplitel Pty Ltd and Telstra Corporation Ltd as respondents.

3    The parties to the FPMM Application have reached agreement on the terms of a determination, and the form of orders that are appropriate to recognise the native title rights and interests held by the members of the claim group for the FPMM Application (FPMM Claim Group) over land and waters covered by the application (Application Area).

4    The history of this proceeding is set out in a summary manner below. It is appropriate to note at the outset that achieving consent has been a significant undertaking and represents an important achievement for the continuing connection of the First Peoples of the Millewa-Mallee Native Title Claim Group to their Country. This determination represents a recognition of rights that have existed for a very long time, and which continue to exist under the stewardship of the present generation, for the benefit of future generations.

5    For the reasons set out below, the Court is satisfied it is appropriate to make the orders sought, and that it is within the power of the Court to do so.

THE MATERIAL BEFORE THE COURT

6    A number of affidavits have been filed, relevant to the present application. They are:

(1)    Affidavit of Mr Jack Robert James, Special Administrator of First People of the Millewa-Mallee Aboriginal Corporation (ICN 8264) (the Corporation or FPMMAC) dated 23 June 2025.

(2)    Affidavit of Mr Tony Robbins, an independent scrutineer, dated 31 May 2025.

(3)    Affidavit of Ms Stacey Laura Little, a legal practitioner of the First Nations Legal & Research Services (FNLRS) and solicitor on the record for the Applicant, dated 20 June 2025.

7    I have read and had regard to the contents of the affidavits. Of particular significance in determining the proceeding, I note that the following material has been filed:

(1)    A proposed minute of order reflecting the proposed determination (Minute); and

(2)    A nomination by the Native Title Holders (as defined in the Determination) that FPMMAC be the prescribed body corporate (the PBC) for the purposes of s 57(2) of the NTA, which includes the following material:

(a)    the nomination of the Corporation to be appointed as the prescribed body corporate under the NTA;

(b)    the written consent of First People of the Millewa-Mallee Aboriginal Corporation to being the PBC; and

(c)    the Certificate of Registration of the Corporation from the Office of the Registrar of Indigenous Corporations dated 23 July 2015.

8    I have also received joint submissions of the Applicant and the State. Both the Court, and these reasons, are indebted to the joint submissions.

PROCEDURAL HISTORY

9    The FPMM Application was filed with the Court on 8 October 2015, pursuant to s 61 of the NTA.

10    As required by s 190A of the NTA, the FPMM Application was assessed against the provisions of ss 190B and 190C of the NTA by a delegate of the Native Title Registrar. The delegate first accepted the FPMM Application for registration pursuant to s 190A of the NTA on 13 May 2016.

11    For a period following its filing, the claimants and State elected to engage in negotiations under the Traditional Owner Settlement Act 2010 (Vic) (TOSA), with a view to the FPMM Application being withdrawn upon successful conclusion of those negotiations. Between 2016 and 2019 the parties exchanged material and negotiated several group composition and boundary issues.

12    On 25 March 2019, the Court ordered the Applicant to notify the Court on or before 17 June 2019 as to whether the Applicant intended to pursue a native title determination. In response to that order, the Applicant confirmed its intention to do so. Negotiations under the TOSA were then suspended.

13    The FPMM Application was then notified by the Native Title Registrar pursuant to s 66 of the NTA. The notification period referred to in ss 66(8) and 66(10)(c) of the NTA ended on 10 December 2019.

14    Mediation between the Applicant and the State took place over subsequent years. On 9 June 2023, the Court ordered that Mr Mark Grist, Ms Wendy Brabham, Mr Robby Knight, Ms Eleanor Bell and Mr LeRoy Badenoch be joined as respondents to the claim (together, the First Nations Respondents). Following this, mediation took place between the Applicant, the First Nations Respondents and the State on the issue of the composition of the claim group. This mediation resulted in an application by the Applicant for leave to amend the claim group description.

15    On 17 July 2024, the Court granted leave for the amendment of the FPMM Application, and removed the First Nations Respondents as respondent parties. The primary purpose of the amendments were to amend the claim group description, which had the effect that the First Nations Respondents became members of the claim group. As required by s 190A of the NTA, the amended application was assessed against the provisions of ss 190B and 190C by a delegate of the Native Title Registrar. The delegate accepted the amended application for registration pursuant to s 190A of the NTA on 17 October 2024.

16    Subsequently, the proceeding returned to mediation between the Applicant and the State for the purpose of negotiating a consent determination. As a result of successful mediation and case management processes, convened by Judicial Registrar Daniel, the parties reached agreement about the terms of a determination of native title. That agreement is reflected in the Minute, which has been signed by all parties to the proceeding.

THE NATIVE TITLE HOLDERS’ TRADITIONAL LAW AND CUSTOMS, RIGHTS AND INTERESTS AND CONNECTION TO COUNTRY

17    The Applicant and the State jointly submit that the assessment material considered by the State supports a number of conclusions. Through that material, they explain that native title rights and interests are acquired on the basis of descent. In order to hold native title rights and interests in the Application Area under traditional laws and customs, a person must descend from an ancestor who was a traditional owner of Country (or come “from” Country) within the Application Area; that is, an ancestor who has rights and interests in that Country under traditional laws and customs. The claimed ancestral link must be recognised and accepted by members of the FPMM Claim Group. Elders and other knowledgeable people play an important role in the process of recognition and acceptance.

18    The joint submissions also make clear that the label “First Peoples of the Millewa-Mallee” encompasses a number of identity labels, associated with people from within a broader regional society, associated with the Murray River region, within which the FPMM Claim Group belongs. Various members of the FPMM Claim Group identify themselves as a Latji Latji, Ngintait or Nyeri Nyeri person, while others identify themselves as connected to the Application Area and part of the community of Native Title Holders without using one of these identifiers. The joint submissions reflect that there is no requirement under traditional laws and customs for people to use or be associated with a particular identity whether based on language or group label or otherwise, in order to hold native title rights and interests, provided they can establish the necessary descent. Association with or connection to a particular identity is not of itself sufficient to acquire and hold native title rights and interests, i.e. in the absence of the ancestral connection to the Country of the Application Area. This is reflected in the description of the Native Title Holders, set out at order [2] of the Determination. This description is the same as the description of the native title claim group in the FPMM Application. The Applicant and the State have made clear that native title rights and interests are not uniformly exercised or enjoyed by all FPMM Claim Group members across all parts of the Application Area. However, the distribution and exercise of native title rights and interests across the Application Area is an intramural matter. The joint submissions state that the FPMM Claim Group members were taught about their Country within the Application Area by elders and family members, and have a cultural obligation under traditional laws and customs to care for it. The members of the FPMM Claim Group, in accordance with this obligation, undertake activities directed towards caring for their Country, and for places of significance in that Country, including burial sites.

19    Moreover, the FPMM Claim Group members explain in the joint submission that they have a connection to the Application Area by their traditional laws and customs which govern the acquisition and holding of rights in relation to land within the Application Area. They state that these laws and customs have existed substantially uninterrupted since immediately prior to Britain’s assertion of sovereignty over the Application Area. The joint submissions state that the FPMM Claim Group members have a physical and spiritual involvement in the Application Area, and their connection to the Country has not been severed, despite the devastating effects of European colonisation, including killings, dispossession and systematic removal from Country and family.

20    It is not the role of this Court to evaluate the conclusions set out in the joint submissions or make findings about them. However, the content of the joint submissions is recorded here as an important outcome of the mediation, and as constituting a joint understanding of the significance of Country and connection to Country by the Applicant after their experience of dispossession.

AUTHORISATION

21    Section 61(1) of the NTA permits the making of a native title determination application by those persons who are authorised (as defined by s 251B of the NTA) by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed.

22    The NTA vests the carriage of the native title determination application in the persons jointly comprising the Applicant; the Applicant may deal with all matters arising under the NTA in relation to the application (s 62A). This includes consenting to a determination of native title pursuant to s 87 of the NTA.

23    The FPMM Claim Group have considered and confirmed the authorisation of the Applicant to act in that capacity and enter into the Minute. On that basis, the persons comprising the Applicant are authorised to consent to the proposed determination of native title rights and interests set out in the Minute.

THE REQUIREMENTS UNDER S 87 OF THE NTA

24    Section 87 of the NTA provides:

87  Power of Federal Court if parties reach agreement

Application

(1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a) agreement is reached on the terms of an order of the Federal Court in relation to:

(i) the proceedings; or

(ii) a part of the proceedings; or

(iii) a matter arising out of the proceedings; and

(aa) all of the following are parties to the agreement:

(i) the parties to the proceedings;

(ii) the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and

(b) the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, are filed with the Court; and

(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.

When a registered native title claimant is taken to be a party to the agreement

(1AA)    The requirements that a party to the proceedings that is a registered native title claimant be a party to the agreement and sign the terms of the agreement are satisfied if:

(a) a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or

(b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms—those persons are parties to the agreement and sign the terms.

(1AB)    The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1AA)(a). A failure to comply with this subsection does not invalidate the agreement or any signature.

Power of Court

(1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

(a) whichever of subsection (2) or (3) is relevant in the particular case; and

(b) if subsection (5) applies in the particular case—that subsection.

Agreement as to order

(2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

Note:    If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Agreement as to part of proceedings

(3) If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates.

Orders about matters other than native title

(4) Without limiting subsection (2) or (3), if the order under that subsection does not involve the Court making a determination of native title, the order may give effect to terms of the agreement that involve matters other than native title.

(5) Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title.

(6) The jurisdiction conferred on the Court by this Act extends to:

(a) making an order under subsection (2) or (3) that gives effect to terms of the agreement that involve matters other than native title; and

(b) making an order under subsection (5).

(7) The regulations may specify the kinds of matters other than native title that an order under subsection (2), (3) or (5) may give effect to.

Agreed statement of facts

(8) If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

(9) Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

(10) In considering whether to make an order under subsection (2), (3) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

(a) the applicant; and

(b) the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

(11) In considering whether to accept under subsection (10) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (9).

(12) A reference in subsections (8) to (11) to the parties to the proceeding includes a reference to the Commonwealth Minister if the Commonwealth Minister is intervening in the proceeding at the time a statement of facts is agreed.

25    Section 87 of the NTA provides that the Court may make a native title determination by consent in the proceedings without holding a hearing where:

(1)    the period specified in the notice given under s 66 of the NTA has ended (first condition);

(2)    agreement is reached between the parties on the terms of an order of the Court in relation to the proceedings and the terms of the agreement, in writing signed by or on behalf of all the parties, are filed with the Court: ss 87(1)(a), (aa) and (b) (second condition);

(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) (third condition); and

(4)    it appears appropriate to the Court to make the orders sought: ss 87(1A) (fourth condition).

26    The Applicant and State jointly submit that I should find that each of the s 87 conditions is satisfied, such that the Court has the power to make the determination under ss 87(1A) and 87(2). I consider the conditions below.

The first and second condition: the notice period and the existence of agreement

27    The first and second conditions may be dealt with briefly:

(1)    As to the first condition, it concerns the notice period referred to in ss 66(8) and 66(10)(c) of the NTA. The FPMM Application was notified by the Native Title Registrar on 10 December 2019, so that the specified notice period has plainly expired. The subsequent amendments were of a kind that did not require notification to take place afresh. Thus, I am satisfied this requirement has been met.

(2)    As to the second condition, an agreement of the kind required by ss 87(1)(a), (aa) and (b) has been filed with the Court. It has been signed by the relevant authorised parties. The material filed with the Court includes the evidence of Mr Tony Robbins, an independent scrutineer who attended the authorisation meeting to observe and verify the voting process, and verify the results of the votes cast in accordance with the voting process.

The third condition: whether the order is within the power of the Court (s 87(1)(c))

28    As to the third condition, I find that the condition has been satisfied because:

(1)    The FPMM Application has been made following authorisation by the FPMM Claim Group according to an agreed and adopted decision-making process, which also authorised the Applicant to make the native title determination application (as required by s 251B of the NTA).

(2)    The native title rights and interests that are to be declared are recognisable by the common law of Australia (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 at 453-4 [77] (Gleeson CJ, Gummow and Hayne JJ)).

(3)    The determination in the Minute complies with ss 94A and 225 of the NTA because:

(a)    The proposed consent determination addresses the existence of native title rights in orders 1, 7, 10 and 11, and Schedule 1, 2, 4 and 5. The Native Title Holders are identified in order 2 of the Determination, and the description is sufficient to identify who holds the proposed native title rights (Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at 22-3 [15] (Wilcox, North and Weinberg JJ)). Taken together, these matters satisfy s 225(a) of the NTA.

(b)    Orders 3 and 4 describe the nature and extent of the native title rights and interests. Those rights and interests are subject to the qualifications in orders 5, 6 and 7, as required by s 225(b) of the NTA.

(c)    The nature and extent of other interests in relation to the Application Area are identified in Schedule 3 in conventional terms, while the relationship between the native title rights and interests, and other interests, are described in order 9 as required by s 225(d). Thus, the requirements of s 225(c)–(d) are satisfied.

(d)    Order 3 provides that the native title rights and interests in relation to certain parts of the Application Area, being those referred to in Schedule 2, are the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others. The native title rights and interests in all other parts of the Application Area do not confer possession, occupation, use and enjoyment of those parts on the Native Title Holders to the exclusion of all others (see order 4). The Minute also records the parties’ intentions that further exclusive possession recognition will occur through application of s 47C to certain park areas within the Application Area, subject to the parties reaching agreement and satisfaction of the relevant statutory requirements.

(4)    There is no other native title application over the Application Area, and the FPMM Application seeks a determination of native title for an area of land and waters in relation to which there is no approved determination of native title (s 13(1)(a) of the NTA). As such, ss 67 and 68 of the NTA do not apply.

29    Thus, an order in the terms proposed is within the power of the Court, subject to the issue – to which I now turn – of whether it is appropriate to make the order.

The fourth condition: whether it is appropriate to make the orders sought (s 87(1A))

30    The fourth condition concerns the question of whether it is appropriate to make the orders. This condition does not require the Court to receive evidence or make findings. I can, and will, make orders under s 87 provided I am satisfied that the parties have freely, and on an informed basis, come to an agreement. The standard was explained by Murphy J in Austin on behalf of the Eastern Marr People v State of Victoria [2023] FCA 237 (Eastern Marr) at [34] as follows (citations omitted):

It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational.

31    In this respect, the State is obliged to discharge its responsibility in the interests of the community in Victoria as a whole, including the interests and claims of the claimant group and other Indigenous peoples of Victoria (Eastern Marr at [35], citing Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] (Madgwick J); Agius v South Australia (No 6) [2018] FCA 358 (Agius (No 6)) at [72] (Mortimer J) (as her Honour then was)). The State must be satisfied that there is a “‘credible’, ‘rational’, ‘sufficient’ or ‘cogent’” basis for the determination (Eastern Marr at [35], citing Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] (Jagot J); Agius (No 6) at [64], [74]; Holborrow (on behalf of the Yaburara & Mardudhunera People) v Western Australia (No 3) [2018] FCA 1108 at [45] (Barker J)). What is necessary is that the State has sufficient information so that it is in a position to inform the Court that, from the State’s perspective, it is appropriate for the Court to make the determination in orders giving effect to the terms of an agreement as provided for in s 87 of the NTA.

32    Overall, the purpose of the consent determination scheme is to enable, rather than prohibit, the making of a consent determination, and so must be approached “rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved” (Eastern Marr at [36] per Murphy J). This observation is equally applicable to s 87 of the NTA.

33    Mediation, and the outcomes agreed at mediation, are “fundamental” to the NTA’s operation (The Nyamal Palyku Proceeding (No 7) [2023] FCA 528; 296 FCR 169 (Nyamal Palyku) at [106] (Colvin J)). The NTA “elevates mediation and agreement to be the preferred means for the resolution of controversies as to the existence of native title. It requires all those involved to act accordingly” (Nyamal Palyku at [107]).

34    There must be probative material before the Court to enable it to assess whether the matters set out in s 225 of the NTA can be determined to exist, and have always existed, so that the claimants’ connection to their Country, and their rights and interests in accordance with traditional laws and customs, can be recognised. The principal source for the Court’s assessment of these matters may be the joint submissions filed on behalf of the key active parties (Gilla on behalf of the Yugunga-Nya People v Western Australia (No 3) [2021] FCA 1338 (Gilla) at [39]-[40] (Banks-Smith J)). In this case, I have had regard to the content of the joint submissions, including as summarised at [17]–[19] above, to establish that the matters set out in s 225 of the NTA can be determined to exist.

35    The materially different standards which might apply in a negotiation towards a consent determination were highlighted by the Full Court in Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; 274 FCR 577 at [51]:

Before considering the facts of the present case it is necessary to say something about the Court’s power to make a determination of native title in accordance with an agreement. The Court must be satisfied that it is appropriate to make the orders specified in the agreement and that there is power to do so: ss 87(1)(c) and 87A(4) of the NT Act. It has been stated that it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application: Lovett v Victoria [2007] FCA 474 at [37] (Lovett) citing Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109; see also Watson v Western Australia (No 6) [2014] FCA 545 at [29]. Further, in Lovett it was made clear that “[t]he Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court”. To fulfil its function under the NT Act, in the context of a mediation with a view to entering an agreement under ss 87 or 87A, the State is not required to obtain proof from an applicant which would demonstrate to the civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist. Indeed, for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith in the conduct of the mediation. It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State’s perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in s 87 or 87A of the NT Act. To place such an unwarranted burden on an applicant would be fundamentally inconsistent with the scheme of the NT Act and in particular the provisions identified above which constitute the “special procedure”, which the Preamble to the statute recognises is required for the “just and proper ascertainment of native title rights and interests”. Such an act would readily be characterised as an act not in good faith in the conduct of a mediation.

36    It is clear that the State has adopted an appropriate approach, consistent with the above comments, in this proceeding.

37    Section 87 confers a discretion to be exercised judicially and flexibly within the broad boundaries ascertained by reference to the provision, and having regard to the subject matter, scope and purpose of the NTA including the resolution of native title disputes by mediation and agreement (Brown v Western Australia [2007] FCA 1025 at [22]; Gilla at [37]).

38    The Applicant and the State jointly submit that it is appropriate to make the order. The evidence and joint submissions make clear that the Minute reflects an outcome reached through good faith mediation between the Applicant and the State, with each of the Applicant and the State having played an active role, and having been legally represented throughout the process. I consider that the evidence proffered, in combination with the joint submissions, make it appropriate to make the orders sought in the Minute having regard to the principles and standards that I have set out above.

The prescribed body corporate

39    The Court is required to determine which body will perform the functions of the PBC, in accordance with ss 55 and 57 of the NTA. The corporation proposed in the Minute to be determined as the PBC pursuant to s 57 of the NTA to hold the determined native title as agent for the Native Title Holders in these proceedings is FPMMAC.

40    FPMMAC was registered on 23 July 2015 under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). FPMMAC has consented in writing to the nomination. The Corporation is currently under special administrators appointed under the CATSI Act; on that basis, the consent to nomination has been given by the special administrators, exercising, in accordance with the CATSI Act, the powers of the directors of the Corporation, and with the advice of the Applicant and the FPMM Claim Group.

41    I have considered whether FPMMAC is the appropriate PBC in light of the fact it is under special administration. I have the benefit of an affidavit of Mr Jack Robert James, the Special Administrator. I have had particular regard to a number of matters, including:

(1)    FPMMAC has made amendments to its rule book to make it compliant with the CATSI Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), including to:

(a)    align the eligibility for criteria for membership of the Native Title Holders to the description of the FPMM Claim Group, such that the description is consistent with the Native Title Holders recognised by the consent determination;

(b)    remove the directors’ discretion to refuse an application for membership that is made in the required manner and meets the eligibility for membership criteria; and

(c)    add a process for the resolution of disputes between the PBC and persons who are, or claim to be, Native Title Holders, in relation to whether or not the person is a Native Title Holder, or the corporation’s performance of its functions under the NTA and relevant regulations.

(2)    Since the special administration commenced significant work has been undertaken to bring the financial records of the Corporation up to date, to ascertain the financial position of the Corporation, and to enable reporting to stakeholders, including funders. As a consequence, funding has been released to the Corporation. Work will continue on these issues, however, the Special Administrator considers that the Corporation is now solvent.

(3)    Significant steps have been taken to address deficits in good governance and financial management and other issues in the operation of the Corporation. Those steps included, among other things, a review of the organisational structure of the Corporation, improvements to the nature and level of reporting which will be provided to the new board of directors to be appointed in due course, and appointments of a Chief Executive Officer and General Manager. This has resulted in the creation of new roles and responsibilities.

(4)    At the end of the special administration, the Office of the Registrar of Indigenous Corporations (ORIC) will implement its “post special administration monitoring”, a protocol whereby the Corporation is required to provide information to ORIC on a regular basis over a period of time which the Special Administrator deposes is usually 12 months. I consider that this will provide support to the Corporation as it transitions away from special administration.

(5)    The Special Administrator is not aware of any issues which may prevent the Corporation being returned to members’ control, and on that basis, I infer that the transition will take place in a timely way.

42    In addition, I take into account the FPMM Claim Group’s support for FPMMAC being appointed as the PBC. The State also supports the appointment of FPMMAC as the PBC.

43    I am therefore satisfied it is appropriate to appoint FPMMAC as the PBC in the terms set out in the Minute.

CONCLUSION

44    By making orders in the terms sought in the Minute, the parties, in their joint submission, have recognised that, despite the dispossession and other atrocities inflicted upon the Native Title Holders and their predecessors, the Native Title Holders have maintained their traditional laws and customs and have under them a deep and enduring connection to the Country of the Application Area, which is a testament to the strength and commitment of the Native Title Holders and their ancestors.

45    It is appropriate to make the orders sought. In doing so, the Court recognises the resilience and determination of the First Peoples of the Millewa-Mallee Native Title Claim Group in reaching this milestone. Doing so is a testament to the strength of connection to Country that this determination reflects.

Associate:

Dated:    18 July 2025

SCHEDULE OF PARTIES