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Carlton v Northern Territory of Australia  FCA 576
|Date:||31 May 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Spirit Hills Pastoral Lease, Northern Territory, Australia|
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|The determination area is set out in Schedule B of the Federal Court consent determination. It covers the Spirit Hills Pastoral Lease No. 2 (Perpetual Pastoral Lease 1200), which is situated in Keep River National Park near the border between Western Australia and the Northern Territory.|
|Legal Status:||Registered on the National Native Title Register (of native title determinations).|
|Legal Reference:||Federal Court No: NTD 38 of 2010; National Native Title Tribunal No: DC10/25.|
|Subject Matter:||Native Title|
|Between: Ronnie Carlton on behalf of the Muriuwung-Nyawam Nyawam group, the Miriuwung-Bindjen group, the Gajerrong-Gurrbijm group, the Gajerrong-Djarradjarrany group, the Gajerrong-Djandumi group and the Gajerrong-Wadanybang group (APPLICANTS) and|
Northern Territory of Australia (FIRST RESPONDENT)
Northern Territory Land Corporation (SECOND RESPONDENT)
Judge: Mansfield J
Where made: Jinumum Walk
Native title exists in those parts of the determination area that are identified in Schedule C. It consists of non-exclusive native title rights and interests that do not confer on the native title holders the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others.
Native title is held by the members of six estate groups: the Miriuwung-Nyawam Nyawam group, the Miriuwung-Bindjen group, the Gajerrong-Gurrbijim group; the Gajerrong-Djarradjarrany group, the Gajerrong-Djandumi group and the Gajerrong-Wadanybang group.
Non-Exclusive Native Title Rights
Non-exclusive native title rights and interests that exist over those parts of the determination area identified in Schedule C include:
- the right to travel over, move about on and have access to the land;
- the right to hunt, fish, gather and use the natural resources of the land;
- the right to take and use natural water from the land (this does not include water captured by the holders of Perpetual Pastoral Lease 1200);
- the right to live and camp on the land (this includes erecting shelters and other structures for these purposes);
- the right to light fires for domestic purposes; and
- the right to engage in cultural activities on the land, including (i) participating in cultural practices relating to birth and death; (ii) conducting ceremonies and meetings; and (iii) teaching the physical and spiritual attributes of sites and places on areas of significance under traditional laws and customs.
- the right to maintain and to protect sites and places on areas of significance;
- the right to exchange subsistence and other traditional resources obtained on or from those areas;
- the right to be accompanied on to those areas by persons who, though not native title holders, are: (i) people required by traditional law and custom for the performance of ceremonies or cultural activities; (ii) people who have rights in relation to the areas according to traditional laws and customs acknowledged by the estate group members; (iii) people required by the estate group members to assist in observing or recording traditional activities on these areas; and
- the right to conduct activities necessary to give effect to any of the abovementioned rights.
These rights do not confer exclusive rights of possession, use and enjoyment of the land or waters. They are intended to be used for the personal or communal needs of the native title holders, and do not allow for any commercial or business use of the determination area.
Areas and Subject Matter Where Native Title Does Not Exist
Native title does not exist over minerals, petroleum, geothermal energy or water captured by holders of non-native title rights and interests.
Native title rights and interests also do not exist in those parts of the determination area that are identified in Schedule D.
Non-Native Title Rights and Interests That Exist Within the Determination Area
These can be summarised as:
- The interests of the Northern Territory Land Corporation under Perpetual Pastoral Lease 1200;
- the rights of Aboriginal persons (whether or not they are native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in the pastoral lease, and also under the the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
- the rights and interests of Telstra Corporation Limited;
- the rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or any other statutory authority;
- the interests of persons to whom rights and interests have been granted by the Crown, or otherwise conferred by statute; and
- various rights and interests granted under the Mining Act (NT).
Where native title rights and interests in the determination area conflict with the exercise of the non-native title rights and interests outlined above, the non-native title rights will prevail over, but will not extinguish, the non-exclusive rights of the native title holders.
This determination concerns the Spirit Hills Pastoral Lease No. 2 application for a determination of native title, which was filed with the Federal Court of Australia on 2 November 2010.
The determination was made at the same time as five other consent determinations by Mansfield J on 31 May 2011, when native title was recognised over various pastoral lease areas in the Keep River National Park district in the Northern Territory. These determinations form part of the first 'en masse' consent decision since 1994 (Stewart, 2011). They encompass the Spirit Hills, Bullo River, Auvergne, Newry, Rosewood and Legune cattle stations.
These native title determinations follow a period when the Native Title Act 1993 (Cth) and its tests for the recognition of applicants' connections to land have become the subject of criticism. In particular, former prime minister Paul Keating and Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda have argued in favour of reforms to the Act that would make the native title claim process less onerous for Indigenous groups (Gosford, 2011).
Mansfield J's decision shows that in the absence of legislative reform, consent determinations are one way to resolve claims in a faster and less burdensome way, without the need for a formal hearing (Gosford, 2011). They do, however, require parties such as governments, land councils and pastoralists to act cooperatively with native title claimants - as in this case, where the Northern Territory government and the station owners had acknowledged the rights of the claimant groups (Stewart, 2011). Determinations such as this one are expected to 'streamline the process' for Indigenous groups that are still seeking recognition of their rights and interests in land (Stewart, 2011).
Details of the Judgment
The Court was satisfied that it was appropriate and within its power to make this consent determination.
Two matters remain outstanding in this judgment (and also in the other five consent determinations concluded by Mansfield J). First, the determination provides for an Aboriginal corporation to be nominated to the Court within 12 months, to be the prescribed body corporate for the purposes of s 57 of the Native Title Act 1993 (Cth). Secondly, the parties may apply to the Court to establish the precise location of certain public works and other improvements within the Determination Area, in relation to extinguishment issues (AIATSIS, 2011, 2-3).
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