In this matter, Mortimer J recognised the native title rights and interests of the claim group made up of people from nine estate areas associated with the Kankawarla, Kanturrpa, Jajjinyarra, Linga, Patta, Pirrtangu, Purrurtu, Wapurru and Yurtuminyi landholding groups. The determination area covers the Phillip Creek Pastoral Lease, and is located approximately five kilometres north of Tennant Creek, in the central region of the Northern Territory. The respondent parties were the Northern Territory, pastoralists Alexander John and Katherine Louise Warby, and Gowan Russell Carter and Jennifer Erica Cook.
The application for determination of native title was filed on 1 December 2014 and subject to two interlocutory applications for amendment, primarily seeking to remove the original named applicant who passed away in August 2015, and to update the list of mining interests in the application area. The application was amended in November 2016.
The applicant and the Northern Territory agreed (without opposition from the other three respondents) to resolve the claim by a ‘short-form’ approach involving anthropological evidence and material relating to the construction or establishment of public works in the claim area. The anthropological evidence filed was briefer than in a contested claim. The parties reached agreement on the terms of the determination pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) (NTA).
The non-exclusive native title rights and interests recognised include the right to access and live on the land, the right to hunt, gather and fish and take and use the natural resources of the land and waters.
Other interests in the area include those of the Phillip Creek Station pastoral lease holder, various pipeline licences and easements and rights of way connected to those licences, the interests, by way of fee simple estate, of two Aboriginal Corporations (Yurtuminyi Aboriginal Corporation in relation to NT Portion 5005 and Jurntu Jungu Aboriginal Corporation in relation to NT Portion 5006); a substantial number of mining and petroleum tenements (mostly held by two corporations, Giants Reef Exploration Pty Ltd and Santexco Pty Ltd); telecommunications interests held by Telstra and several other leasehold interests in NT Portion 5476. A variety of other interests, including interests held by Aboriginal people who may or may not be included as native title holders in the claim area are also recognised, such as rights and interests arising under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).
Mortimer J discusses s 87 of the NTA and the Court’s function at [12]-[24] of her Honour’s reasons. At [21]: ‘Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties’ agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report…However there is no need to provide the Court with all of the evidence of the primary facts substantiating native title. Again, that is because the premise of s 87, and the Native Title Act’s emphasis on conciliation, is that the parties have freely and on an informed basis come to an agreement.’
‘A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties’ agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J’ (at [23]).
Her Honour was satisfied that there was ample evidence in support of a close and ongoing connection to country through traditional law and custom, and to provide the foundation for acceptance by the Territory of the claim, and a foundation for the determination in the form sought.
Mortimer J allowed the applicant 12 months to make a proposal regarding the nomination of the prescribed body corporate.
Her Honour congratulated the parties on reaching agreement within three years of the s 61 application being filed: ‘That is an admirable achievement’ (at [45]).