Freddie v Northern Territory

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FEDERAL COURT OF AUSTRALIA

Freddie v Northern Territory [2017] FCA 867

File number: NTD 50 of 2014
Judge: MORTIMER J
Date of judgment: 3 August 2017
Catchwords: NATIVE TITLE – consent determination of native title – agreement of parties – s 87 of the Native Title Act 1993 (Cth)
Legislation:

Native Title Act 1993 (Cth), ss 55, 56, 57, 61, 66, 67, 68, 87, 87A, 94A, 223, 225

Federal Court of Australia Act 1976 (Cth), ss 37M, 37N
Cases cited:

Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604

Brown v Northern Territory of Australia [2015] FCA 1268

Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588

Goonack v State of Western Australia [2011] FCA 516

Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487

Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365

King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387

Lander v State of South Australia [2012] FCA 427

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109

Peterson v State of Western Australia [2013] FCA 518

Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851

Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819

Thudgari People v State of Western Australia [2009] FCA 1334

Ward v State of Western Australia [2006] FCA 1848

Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480

Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647
Date of hearing: Determined on the papers
Date of last submissions: 23 June 2017
Registry: Victoria
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 45
Solicitor for the Applicant: Ms S Polden, Central Land Council
Solicitor for the First Respondent: Ms K Gatis and Ms N Festing, Solicitors for the Northern Territory
Counsel for the Second Respondent: The Second Respondent did not appear
Counsel for the Third Respondent: The Third Respondent did not appear

ORDERS

NTD 50 of 2014
BETWEEN:

COLIN FREDDIE, GEOFFREY TAYLOR, JANICE WAISTCOAT, LENNY WILLIAMS, MICHAEL WILLIAMS, RONALD HUGHES, SHARON BILL AND WILLIAM STOKES on behalf of the members of the Kankawarla, Kanturrpa, Jajjinyarra, Linga, Patta, Pirrtangu, Purrurtu, Wapurru and Yurtuminyi landholding groups

Applicant
AND:

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

ALEXANDER JOHN AND KATHERINE LOUISE WARBY

Second Respondent

GOWAN RUSSELL CARTER AND JENNIFER ERICA COOK

Third Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

3 August 2017

THE COURT NOTES THAT:

A.The applicant in this proceeding NTD50/2014 has made a native title determination application (“the application”) that relates to an area of land and waters which is…

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Details
Case
[2017] FCA 867
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Freddie v Northern Territory involved a dispute regarding the consent determination of native title. The applicant, Freddie, sought a determination of native title rights and interests in a specified claim area. The Northern Territory, as the respondent, agreed to the terms of the determination proposed by the applicant. The legal issues before the Court were whether the determination met the requirements of the Native Title Act 1993, whether the Court had the power to make such a determination, and whether it was appropriate to grant the orders sought by the applicant. The Court considered the agreement of the parties, the anthropological evidence, and the characteristics of native title rights and interests as outlined in the Act. The Court found that the determination met the statutory requirements and that it was within the Court's power to make such a determination. The Court also found that it was appropriate to grant the orders sought by the applicant, given the agreement of the parties and the active role taken by the Northern Territory in resolving the claim. The Court made orders determining the native title rights and interests in the claim area, and provided for the possibility of a prescribed body corporate holding the native title rights and interests on trust for the common law holders. The Court also granted liberty to the parties to apply to establish the precise location and boundaries of any public works and adjacent land and waters identified in the determination. There was no order as to costs.

Orders

Orders of the court

1. There be a determination of native title in terms of the determination set out below. The Determination is to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Act as the case may be.

2. Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:

(a) nominating in writing to the Court a prescribed body corporate to be trustee of the native title rights and interests; and

(b) including within the nomination the written consent of the body corporate.

3. If a prescribed body corporate is nominated in accordance with order 2, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests.

4. In the event that there is no nomination within the time specified in order 2, or such later time as the Court may order, the matter is to be listed for further directions.

5. 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.

6. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By s 55 of the Act the Court must, either at the time of making its orders or “as soon as practicable” after having done so, make such determinations as are required by ss 56 and 57 of the Act, relating to whether the native title is to be held on trust and if so by whom (s 56) and, whether a prescribed body corporate will hold the native title on trust, alternatively whether such a body will perform the non-trustee functions as set out in s 57(3) of the Native Title Act. In the present case, at the time of the making of the Court’s orders and the determination of native title, there has not been any proposal put to the Court concerning the operation of ss 56 and 57 in relation to the claim area. The parties have sought orders which allow the applicant a period of 12 months from the date of the Court’s orders to put a proposal to the Court. In the circumstances, and especially given this claim has been resolved in a relatively short period of time (less than three years) I am satisfied it is appropriate to allow the applicant 12 months to prepare the necessary proposal. Conclusions on the application I am satisfied that: (1)The determination sets out the matters required by s 94A;(2)The determination is within the power of the Court; and(3)It is appropriate to make the determination. As to s 94A, the parties have agreed that the native title claim group described in [7] above and in the report by Ms Donaldson and Mr Firinu comprises those who hold the native title rights and interests within the meaning of s 223(1) of the Act in the claim area. Their agreement, and the material before the Court, meets the criterion set out in s 225(a) of the Native Title Act that the determination must set out who are the persons, or each group of persons, holding the common or group rights comprising native title. The proposed determination also identifies the nature and extent of the native title rights and interests in relation to the claim area, as s 225(b) requires. It also identifies the nature and extent of any other interests in relation to the claim area, and what relationships those other interests have to the native title rights. Thus, the requirements in s 225(c) and (d) are met. As to power of the Court, I am satisfied of the matters I set out in [12] and [15] above in relation to this application. Finally I am satisfied it is appropriate to make the orders and determination sought. The applicant and the Territory have considered and addressed the necessary matters to reach agreement, and the agreed facts, submissions and anthropological evidence demonstrate that the Northern Territory has a rational and reasonable basis to agree to a consent determination under s 87, in the form proposed. I am also satisfied that the parties’ agreement, and the proposed determination, properly reflect the characteristics of native title rights and interests set out in s 223 of the Native Title Act. The Northern Territory has taken an active role in the assessment and resolution of the claim, including where necessary undertaking searches of land tenure, mining and other relevant interests and providing copies of those searches to other parties. The principal parties have all been legally represented, and this fact assists the Court in being satisfied that the parties have given free and informed consent to the proposed determination and orders.

Ratio Decidendi

Legal Principle Established

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