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Young v Northern Territory of Australia  FCA 583
|Date:||2 June 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Northern Territory , Australia|
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|Montejinni West Pastoral Lease is an area of approximately 1495 km2 in the north west area of the Northern Territory, about 600 km south of Darwin. The Montejinni West Pastoral Lease is to the west of Newcastle Waters Station, and to the east of the Gregory National Park.|
|Legal Status:||Registered on the National Native Title Register (of native title determinations).|
|Legal Reference:||Federal Court Number: NTD14/2010 National Native Title Tribunal File No: DC10/10-1|
|Subject Matter:||Agriculture | Cultural Heritage | Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Between: Alan Young on behalf of the Nirrina group, the Yingawunarri group, the Purrurruka group, the Yilyilmarri group and the Billinara group(APPLICANT) and |
Northern Territory of Australia (FIRST RESPONDENT)
A A Company Pty Ltd (SECOND RESPONDENT)
Judge: Mansfield J
Where made: Pigeon Hole
Determination: Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
Native title is held by Nirrina group, the Yingawunarri group, the Purrurruka group, the Yilyilmarri group and the Billinara group.
Non-Exclusive Native Title Rights held by the estate groups
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right of access;
- the right to hunt and to fish;
- the right to gather and use natural resources such as food, medicinal plants, wild tobacco, timber, stone and resin;
- the right to take and use natural waters;
- the right to live, to camp and erect shelters on the area;
- the right to light fires for domestic purposes;
- the right to conduct and to participate in:(i) cultural activities;(ii) cultural practices relating to birth and death, including burial rites; (iii) ceremonies; (iv) meetings; (v) teaching the physical and spiritual attributes of sites and places on those areas; (h) the right to look after significant cultural sites and places; (i) the right to share or exchange subsistence and other traditional resources from the native title area; (j) the right to take a non-native holders onto the area when the non-native title holder is required for the performance of ceremonies or cultural activities on the areas or has rights in relation to the areas according to the traditional laws and customs acknowledged by the native title holders or is required by the native title holders to assist, watch or or record traditional activities.
These rights do not confer exclusive rights of possession, use and enjoyment of the area.
Non-exclusive native title rights held by related parties
Members of neighbouring estate groups and spouses of estate group members also have the following non-exclusive native title rights in relation to the area
- the right of access;
- fishing and hunting rights;
- gathering rights including the right to gather and use food, medicinal plants, wild tobacco, timber, stone and resin from the area;
- right to take and use the natural water of the area
- the right to camp;
- the right to light fires on those areas for domestic purposes;
Non-native title rights and interests that exist within the determination area
These rights can be summarised as
- the interests of A. A. Company Pty Ltd in relation to Perpetual Pastoral Lease 1042.
- rights of use for the passage of travelling stock;
- the rights and interests of Telstra as the owner or operator of telecommunications facilities within the Determination Area.
- the interests of Aboriginal inhabitants who ordinarily reside on the land or by tradition are entitled to use or occupy the land, to enter and be on the land and to take food and water pursuant to the Pastoral Land Act 1992 (Vic).
- the rights of Aboriginal persons under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
- rights of access by an employee or agent of the Northern Territory or Commonwealth government in the performance of their statutory duties
- the interests of persons to whom rights and interests have been granted by the Crown or statute.
- Exploration Licence Title No. 27307.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
Extinguishment of native title occured over part of the Determination Area where any public works were built, established or placed in the area prior to 23 December 1996. This includes such works as homesteads, sewer systems, bores and public accesss roads.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals, petroleum or prescribed substances as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or the Atomic Energy Act 1953 (Cth)).
An Aboriginal corporation is to be the precribed body corporate and to perform any relevant functions. The native title holders have 12 months to nominate a prescribed body corporate. The native title rights will not be held on trust.
The determination concerns a native title application that was lodged on the 29 July 2010 over the land and waters within the bounds of the Montejinni West Pastoral Lease (Perpetual Pastoral Lease 1042). The native title area covered by the application is approximately 1495 km2. The application was not accepted for registration pusuant to s109 of the Native Title Act.
This judgement is one of six consent determination judgments made at the same hearing, over land and waters within the bounds of several pastoral leases in the north western area of Northern Territory. The total area covered by the applications was in excess of 15,730 km2.
The applications were heard together due to their geographical proximity. They were all west of Newcastle Waters Station and east of Gregory National Park. There has been a determination of native title over Newcastle Waters Station; King v Northern Territory.
The other applications heard together with this application were in relation to:
- Camfield Pastoral Lease (Campbell on behalf of the Ngapurrpinkakujarra, Narrwan, Walanypirri, Yingawunarrri, Purruruka, Yilyilyimarri, Japuwuny-Wijina, Bilnara, and Wampana Groups);
- Montejinni East Pastoral Lease (King on behalf of the Ngapurrpinkakujarra, Yingawunarri, and Purrurruka Groups);
- Dungowan Pastoral Lease (Wavehill on behalf of the Ngapurrpinkakujarra, Narrwan, Walanyipirri, Yingawunarri, and Narlwan Groups)
- Birrimba Pastoral Lease (Wavehill on behalf of the Ngapurrpinkakujarra, Yingawunari, Narlwan, Luwaja, Tururrutpa, and Beregumayin-Ngarrajanaggu Groups);
- Killarney Pastoral Lease (Young on behalf of the Ngapurrpinkakujarra, Yingwunarri, Liwi, Luwaja, Nirrina, and Beregumayin-Ngarrajanaggu Groups).
In each case, the judge made orders in the terms agreed to by the parties and noted that under s87 of the Native Title Act the agreement must be in writing.
Barrister Raelene Webb stated that to have the six determinations decided concurrently was a large step forward and would allow for consent determinations to be achieved more easily. (McNally, 2011). With approximately 100 claims yet to be settled in the Northern Territory, this sets an important precedent.
Details of Judgement
The Applicant and the Respondents reached an agreement as to the terms of a proposed determination of native title and pursuant to s87 of the Native Title Act. The applicant then filed the agreement for determination.
The court was satisfied that a determination of native title in the terms of the agreement would be within the power of the Court and appropriate pursuant to s 87 of the Native Title Act and the consent of the parties.
Justice Mansfield stated that the Aboriginal people of the area had always been the true native title holders, however in upholding their native title claims, Australia formally recognised the groups as the traditional owners of the land (Statham).
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