The legal branch of the NLC provides advice on all Land Council functions under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act), the Native Title Act 1993 (Cth) (NTA) and other legislation and laws affecting relevant Aboriginal peoples and groups in the NLC region. This includes providing advice about the governance responsibilities to the NLC as a Commonwealth entity pursuant to the Public Governance and Performance Accountability Act 2013 (Cth) and to the Larrakia Development Corporation, Aboriginal Investment Group and Top End (Default PBC/CLA) Aboriginal Corporation RNTBC.
The NLC operates in a complex legal and policy environment, which includes Indigenous representative and advocacy functions within its jurisdiction, the determination of traditional ownership pursuant to the Land Rights Act and service delivery, which touches a broad range of Commonwealth and Northern Territory legislation, including:
Aboriginal Land Act (NT);
Cobourg Peninsular Aboriginal Land, Sanctuary and Marine Park Act 1996 (NT);
Environment Protection and Biodiversity Conservation Act 1999 (Cth);
Mining Management Act 2015 (NT);
Mineral Titles Act 2016 (NT);
Petroleum Act 2016 (NT);
Geothermal Act 2016 (NT);
Environmental Assessment Act 2013 (NT);
Nitmiluk (Katherine Gorge) National Park Act 1989 (NT);
Territory Parks and Wildlife Conservation Act 2006 (NT).
The conduct of land and sea claims pursuant to the Land Rights Act and the Native Title Act are primary functions of the Legal Branch. In addition, it operates a large practice that conducts commercial negotiations on land use agreements pursuant to section 19 and Part IV of the Land Rights Act.
This practice covers a broad range of areas, such as residential housing, commercial enterprises, government service provision, minerals and energy, savanna burning, feral animals, cattle, tourism and natural resource harvesting, such as buffalo mustering, pastoralism and crocodile egg harvesting.
NLC lawyers also conduct negotiations as instructed by Native Title Holders pursuant to the future act provisions of the Native Title Act. This includes the negotiation of Indigenous Land Use Agreements (ILUAs) and associated agreements in relation to minerals and energy, major infrastructure, such as the Jemena gas pipeline, housing subdivisions, community living areas, non-pastoral use permits pursuant to the Pastoral Land Act (NT) and other legislation.
Legal Branch Structure
The NLC legal branch is comprised of a Principal Legal Officer, two Legal Practice Managers, 14 lawyers, a contracts administrator and three administrative assistants.
The branch structure is based around the NLC’s statutory responsibilities and the NLC regional council structure. A lawyer is allocated to each region, one lawyer specialises in minerals and energy, another community planning and development, and two lawyers work solely on the unresolved land claims under the Land Rights Act. The remaining lawyers work in the native title claims practice. All lawyers also work flexibly across all areas of the NLC practice, including on litigation, policy, NLC governance and related matters.
The Contract Administrator position was created in early 2018 and is responsible for monitoring land use agreements to ensure compliance with key obligations and to take steps to address instances of non-compliance.
There is a Legal Practice Manager for both land rights and native title. The Legal Practice Manager (Land Rights) supervises each of the regional lawyers together with the minerals and energy lawyer and Contracts Administrator. The Legal Practice Manager (Native Title) supervises the native title lawyers and those lawyers with carriage of the unresolved land claims.
The branch has been able to employ additional staff on short-term contracts through better management practices and the improved provision of financial information. During the reporting period, three paralegals were employed on short-term contracts and an experienced commercial and mining legal practitioner was seconded from a leading commercial firm.
In addition, an experienced legal secretary has been retained on a casual basis to deal with the branch’s extensive filing and archiving backlog. The branch was also ably assisted by the Aurora Project, which, through its Internship Program, provides high-quality law students as legal interns for four to six-week periods twice a year.
There are 28 native title determination applications before the Federal Court in the NLC’s region. Members of the NLC’s Legal Branch provide legal representation to the claimants for 24 of those claims.
Of the remaining four, three are non-claimant applications filed by the Northern Territory. The fourth is an application brought by the Jawoyn over the Katherine township. The NLC provides funding to the Jawoyn people to meet the legal and related costs of the claim.
There have been 72 determinations of native title in the NLC region recognising native title and two determinations that native title does not exist. All of those claims were facilitated by the NLC and represented by the lawyers of the branch.
The Top End Default PBC/CLA Aboriginal Corporation RNTBC (TED PBC) is administered by the Legal Branch and is the agent prescribed body corporate for all of the positive determinations of native title in the NLC’s region. The NLC Executive from time to time are the members and directors of the TED PBC.
In the reporting period, the NLC’s native title lawyers attended to the following matters:
The hearing by the High Court of each of the Northern Territory, Commonwealth and Native Title Party’s appeals of Northern Territory of Australia v Griffiths  FCAFC 106 considering the calculation of the quantum of compensation for the extinguishment and impairment of native title rights and interests in Timber Creek;
Consent determinations of native title over each of the townships of Jabiru and Pine Creek;
Progressing native title claims over the Town of Katherine and 11 pastoral leases in accordance with Federal Court Orders, including participating in, and assisting with, the mediation of multiple intra-mural disputes between native title parties;
Researching, preparing and seeking authorisation of claimant applications in respect of pastoral lands and sea country; and
Responding to future act notices in a timely and efficient manner.
Land Rights Claims
There are 38 unresolved land claims under the Land Rights Act in the NLC region. Of these, 22 relate to the beds and banks of rivers and/or inter-tidal zones.
The unresolved claims are at various stages of progression and include:
five claims subject to contested hearings;
16 claims that have been recommended for grant but not finalised;
12 claims subject to settlement negotiations with the Northern Territory Government; and
four claims for which claim materials are still being prepared. In the reporting period, the NLC made submissions to the Aboriginal Land Commissioner’s review of detriment issues relating to land claims previously recommended for grant but not finalised. Of those claims, 12 relate to the beds and banks of rivers and/ or intertidal zones within the NLC’s region. Key detriment issues included impacts on recreational fishing, access and use of claim areas by neighbouring pastoral stations, commercial fishing, mining and exploration, tourism and fishing tour operators.
Leases and Licences s19 - Land Rights Act
Under Section 19 of the Land Rights Act, the NLC may direct a land trust to grant an interest in land to a third party. This interest in land may be in the form of either a “lease” for a term of years, or a “licence” giving the proponent permission to use Aboriginal land for a particular purpose, or a combination of both. The term Land Use Agreement encompasses the terms “lease” and “licence” granted under section 19.
In conjunction with the Regional Development branch, NLC lawyers negotiate Land Use Agreements on Aboriginal land under the Land Rights Act, which are considered and approved by the NLC if relevant statutory requirements are met.
These requirements importantly include that the traditional Aboriginal owners of the land concerned understand the nature and purpose of the grant and as a group consent to it; that any Aboriginal community or group affected has been consulted and has had an adequate opportunity to express its view; and that the NLC is satisfied that the terms and conditions of any grant of an estate or interest are reasonable.
In the reporting period, there were 723 current Land Use Agreements (leases or licences) across 3687 parcels of land. A compliance audit has been conducted against the majority of those agreements and efforts are being made to ensure that any cases of non-compliance are addressed.
The audit revealed positive outcomes around local Aboriginal employment, which is a key obligation under most Land Use Agreements.
A total of 116 new Land Use Agreements were approved by the NLC during the reporting period and 195 new expressions of interest for Land Use Agreements were received for 281 parcels of land. This means that while the NLC has processed an increasing number of agreements, demand for new agreements is increasing at a higher rate, such that at the end of the reporting period there were 413 expressions of interest awaiting assessment and probable consultation and negotiation.
To deal with this backlog, in collaboration with Regional Development, the Legal Branch has implemented measures to increase efficiency within the practice, including work to negotiate standard template agreements, consultation tools, and more consistent administrative practices, together with steps to obtain additional resourcing.
The complex environment in which the NLC operates has contributed to a range of court actions being brought against the NLC or its clients. These matters consume considerable human and financial resources of the branch.
These proceedings include:
1. Quall v Northern Land Council
In September 2017, Kevin (Tibby) Quall commenced judicial review proceedings against the validity of the NLC’s certification of the Kenbi Indigenous Land Use Agreement over an area of land on the Cox Peninsula opposite Darwin (Kenbi ILUA). Eric Fejo filed similar proceedings in November 2017 and the two proceedings were subsequently joined. The NLC’s Chief Executive Officer certified the Kenbi ILUA pursuant to their delegated authority. Messrs Quall and Fejo challenged whether the certification functions of a native title representative body under s203BE(1)(b) of the Native Title Act may be delegated to the Chief Executive Officer of the representative body.
On 20 May 2019, the Full Court of the Federal Court held that a native title representative body – such as the NLC Full Council – has no power at all under the Native Title Act to delegate certification functions to its Chief Executive Officer (or anyone else).
That is, only the NLC’s Full Council itself can decide whether or not to certify an ILUA.
In June 2019, the NLC’s Full Council resolved in June to file an application for special leave to appeal the Full Court’s decision in the High Court.
2. Adrian Gumurdul v Northern Land Council
In May 2019, Adrian Gumurdul served on the NLC an application seeking orders for discovery under r 7.23 of the Federal Court Rules 2011. The NLC provided Mr Gumurdul with a number of documents. This proceeding was dismissed in the Federal Court with the consent of the parties on 5 July 2019.
3. Northern Land Council v Jones Cattle NT Pty Ltd
In December 2018, the NLC filed a claim in the Supreme Court against Jones Cattle NT Pty Ltd for payments of $289,234.87 owed to the Traditional Owners of the Menngen Aboriginal Land Trust under a grazing licence. In May 2019, the parties agreed to settle the matter.
4. Jason Bill & Ors v Northern Land Council & Ors
In June 2017, three Ngapa Traditional Owners whose country is primarily situated on the Muckaty Aboriginal Land Trust (Muckaty Land Trust) commenced Federal Court proceedings against the NLC and the Muckaty Land Trust in respect of two matters:
the settlement on 20 June 2014 of Federal Court proceeding Mark Lane Jangala & Ors v NLC & Ors (VID 433 of 2010), which challenged the NLC’s June 2007 nomination of Aboriginal land on the southern boundary of the Muckaty Land Trust to be a site for a national nuclear waste management facility under the Commonwealth Radioactive Waste Management Act 2005 (Cth); and
the 2014 consultation process for a proposed nomination of Aboriginal land on the northern boundary of Muckaty Station under the National Radioactive Waste Management Act 2012 (Cth) This was an application to challenge the NLC’s 2014 settlement of the Muckaty litigation and efforts to nominate a second area of land on the Muckaty Land Trust to be considered as a national radioactive waste management facility.
On 23 October 2018, the Federal Court heard an application from the applicants to further amend their claim and the NLC’s application to strike the matter out. Judgement striking out the matter was delivered by Justice White on 22 November 2018.
5. Rirratjingu Aboriginal Corporation v Northern Land Council & Others
Since 2014, the NLC has been subject to three proceedings initiated by the Rirratjingu Aboriginal Corporation, various Rirratjingu Traditional Owners and Bunuwal Investments Pty Ltd concerning the negotiation of the Gove Agreement and the distribution of compensation payments to Traditional Owners under the agreement. In October 2018, the parties attended mediation and agreed to settle all proceedings.
6. Australian Ilmenite Resources v Ishmael Andrews & Others
On 12 October 2017, mining company Australian Ilmenite Resources Pty Ltd (AIR) commenced proceedings in the Northern Territory Civil and Administrative Tribunal (NTCAT) against the native title parties to the Chatahoochie (NTD6019/2001) and Roper Valley North (NTD6062/2001) native title claims.
AIR sought a determination from NTCAT that the native title parties unreasonably refused consent to AIR’s entry onto their land for the above purposes in contravention of section 84 of the Mineral Title Act 2010 (NT) (MTA). NTCAT referred a number of questions of law to the Northern Territory Supreme Court concerning the interaction of relevant Commonwealth and Northern Territory legislation. In the interim, AIR and the native title parties reached an out-of-court agreement about the access authorities.
Legal input on major internal reforms
The Legal Branch has provided advice to various branches and teams across the NLC in respect of a variety of internal projects as follows.
The Legal Branch works closely with the Permit Reform team to review and reform the NLC’s systems for processing permits and monitoring compliance. This reform includes the development of an online platform for processing permit applications and various policies for administering the permit system.
Lawyers have provided the team with advice on the legal requirements for access to Aboriginal land and developing agreements with Traditional Owners to facilitate the issuing of permits. This work has been complemented by efforts to increase the formal legal powers of Aboriginal rangers to enforce permits on Aboriginal land, including the NLC’s submissions to the Territory Parks and Wildlife Conservation Amendment Bill 2019.
2. Section 35(4) – Payment Arrangement Policy
Section 35(4) of the Land Rights Act provides that when the NLC receives a payment under a land use agreement in accordance with section 15, 16, 19 or 20, the NLC must pay an amount equal to that payment to or for the benefit of the Traditional Owners of the land within six months. The NLC has been working to ensure more consistent, best practice internal processes that fully align with these obligations.
To this end, on 13 November 2018, the Full Council adopted a Section 35 Payment Arrangements Policy.
The policy aims to ensure that Traditional Owners are provided with the information and options to make fully informed choices about how land use agreement payments are distributed or otherwise applied.
3. Land Use Management and Royalties (LUMAR)
The Legal Branch has worked closely with the Land Use Management and Royalties (LUMAR) team to help with the design of a single contract management system within the NLC. In particular, lawyers have worked to ensure key statutory processes are captured and that adequate compliance checks are incorporated. Once implemented, the LUMAR system will significantly improve the efficiency and effectiveness of processing land use agreement applications, contract management and compliance.
Legal input on Regulatory Reform
The branch has been responsible for, or involved in, the preparation of a range of submissions and meetings in relation to the following:
Pastoral Land Legislation Amendment Bill 2017;
Comprehensive reform of the Water Act 1992 (NT) in the Water Amendment Bill 2019;
Amendment of the Environmental Protection Act;
Amendment of the Northern Territory Environment Protection Authority Act;
Amendment of the Waste Management and Pollution Control Act;
Reform of the Petroleum Act and the Petroleum (Environment) Regulations;
Reform of the Parks and Wildlife Conservation Act
Significant Cases and Projects
The highlights of the reporting year have been the conduct of the following cases and projects:
1. Timber Creek Native Title Compensation Case (NTG v Griffiths NTD 51 of 2016; Commonwealth v Griffiths NTD 52 of 2016)
In September 2018, the High Court held its first ever sitting in Darwin to hear the Timber Creek Compensation Case in relation to the compensation payable, pursuant to s 51 of the Native Title Act, to the Ngaliwurru and Nungali Peoples (Claim Group) for the extinguishment of their non-exclusive native title rights and interests.
On 13 March 2019, the Court awarded compensation for economic loss equating to 50 per cent of the freehold value of the affected land with simple interest, and compensation for cultural loss in the amount of $1.3 million.
The Northern Territory was responsible for 53 acts held to have impaired or extinguished the Claim Group’s native title rights and interests, which gave rise to the Claim Group’s entitlement to compensation on just terms under s51 of the Native Title Act. At issue was the amount of compensation payable to the Claim Group.
The trial judge held the Claim Group was entitled to an award for economic loss equating to 80 per cent of the freehold value of the affected land, simple interest on that award, and compensation for cultural loss in the amount of $1.3 million. On appeal, the Full Court varied the trial judge’s assessment of economic loss from 80 per cent to 65 per cent of the freehold value of the land, but otherwise, relevantly, affirmed the trial judge’s decision.
By grants of special leave, the Claim Group, the Northern Territory and the Commonwealth appealed to the High Court. The Claim Group contended among other things that its economic loss equated to the freehold value of the affected land without reduction. The Northern Territory and the Commonwealth contended among other things that the value of the Claim Group’s economic loss did not exceed 50 per cent of the freehold value of the affected land, and the award for cultural loss was manifestly excessive.
The High Court unanimously allowed the Northern Territory and Commonwealth appeals in part and dismissed the Claim Group’s appeal.
The court held, by majority, that the economic value of the Claim Group’s rights and interests involved determining the percentage reduction from full exclusive native title represented by the Claim Group’s non-exclusive native title rights and interests relative to full exclusive native title.
That percentage reduction was applied to full freehold value as a proxy for the economic value of full exclusive native title. The court held that the value of the Claim Group’s non-exclusive native title rights and interests, expressed as a percentage of freehold value, was no more than 50 per cent.
The court rejected that the Claim Group was entitled to compound interest on that sum and awarded simple interest at the pre-judgment interest rate fixed by the Federal Court of Australia Practice Note CM16. That interest was not part of the total compensation payable for the extinguishment of native title within the meaning of s51A of the Native Title Act.
The court upheld the award for cultural loss of $1.3 million. The court held that assessment of cultural loss required determining the spiritual relationship that the Claim Group have with their country and then translating the spiritual hurt caused by the compensable acts into compensation and that the assessment will vary according to the compensable act, the identity of the native title holders, the native title holders’ connection with the land or waters by their laws and customs and the effect of the compensable acts on that connection. The court held that the award to the Claim Group was not manifestly excessive and was not inconsistent with acceptable community standards.
2. Project Sea Dragon
Project Sea Dragon is a large-scale commercial prawn farm proposed to be built at Legune Station, near the border of the Northern Territory and Western Australia on the northern Australian coastline, approximately 106 kilometres from Kununurra.
The value of the investment is estimated by the proponent at $1.45 billion and at full scale will be the world’s largest aquaculture development.
The Legal Branch is overseeing implementation of the Project Sea Dragon Indigenous Land Use Agreement between the NLC, TED PBC, Project Sea Dragon Pty Ltd (the project proponent, Seafarms), and the Northern Territory of Australia.
In addition to financial benefits, the agreement provides native title holders and local Aboriginal people significant employment, training and business development opportunities, as well as cultural and environmental protections.
The key milestones achieved in the reporting period since the signing of the ILUA include:
the establishment of the ILUA Project Committee to monitor and guide implementation of the ILUA. Native title holder participation and leadership in the governance of this Committee has increased markedly since the inception of the committee in February 2018;
development of a comprehensive cultural awareness training program and a cultural induction process, led by native title holders;
implementation of a robust sacred site protection/cultural monitoring process, with strong collaboration between native title holders, senior custodians and the NLC Anthropology Branch;
a strong planning process around financial benefits under the ILUA;
successful completion of a major upgrade of the Marralam outstation, which incorporated native title holder employment and skills training;
incorporation of a native title holdercontrolled contracting business, Legune Constructions Ltd, to provide native title holders with tangible employment and training opportunities, both via the consortium with Allan King and in its independent capacity;
the award of the first contract for Legune by Seafarms to the consortium between native title holder company, Legune Constructions Ltd, and Allan King;
binding commitments from AAMIG, the new owner of the Legune pastoral lease, to engage constructively with native title holders and assume ILUA obligations with respect to cultural issues, access and various other issues; and
agreement in June 2019 between Seafarms, native title holders and the NLC for the early commencement of stage one of the indigenous ranger program at Legune.
3. Native Title Determination over Jabiru
On 9 November 2018, at a Federal Court ceremonial hearing on the banks of Lake Jabiru, the Jabiru Township native title claim was determined in favour of the Mirarr People.
This brings to an end a claim that began in 1997. The determination follows a judgment by Justice Mansfield in 2016 about extinguishment, which recognises non-exclusive native title rights and interests in extensive areas within the Jabiru Township boundaries. This native title process is but one of several important steps that the Mirarr People are taking to regain some control over their country.
4. Addressing illegal activity on Aboriginal land
Key areas of illegal activity that intersect with the NLC’s mandate include:
trespass on Aboriginal land;
the unauthorised taking of resources from Aboriginal land; for example, illegal hunting, mustering and mineral extraction;
unauthorised commercial activity on Aboriginal land; for example, tourism; and
the unauthorised destruction of Aboriginal land, including land clearing and dumping.
Most of the above activities are not closely monitored by relevant government authorities.
In early 2019, the Legal Branch convened an organisation-wide workshop and established a cross-branch working group to address illegal activity on Aboriginal land.
The purpose of the workshop was to consolidate knowledge around and evaluate practices and develop strategies to streamline and strengthen those practices. In many cases, the NLC has limited to no means to address illegal activity, other than to refer matters to the relevant authorities and to try to influence those authorities to take action.
To address that limitation, the Legal Branch has developed increasingly constructive relationships with certain key regulators and authorities, including parts of the NT Police, NT Firearms Registry and Tourism NT.
5. Native Title Determination over Pine Creek
On 9 April 2019, after 20 years of negotiations, the Wagiman and the Jawoyn Bolmo, Matjba and Wurrkbarbar groups were determined to have exclusive native title rights over almost all of the 12 square kilometres of land comprising the town of Pine Creek.
The Federal Court held a ceremonial sitting at Heritage Park in Pine Creek attended by over 160 local Aboriginal and Pine Creek residents.
Exclusive possession native title is the highest recognition capable under Australian property law, giving Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar native title holders an opportunity to regain control of their country and determine its future use.