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Wavehill v Northern Territory of Australia  FCA 584
|Date:||2 June 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Birrimba Pastoral Lease (Perpetual Pastoral Lease 935). , Northern Territory, Australia|
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|Birrimba Pastoral Lease is an area of approximately 2595 km2 in the north west area of the Northern Territory, about 600 km south of Darwin. The Birrimba Pastoral Lease is to the west of Newcastle Waters Station, and to the east of the Gregory National Park.|
|Subject Matter:||Access | Agriculture | Land Use | Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Between: Jimmy Wavehill on Behalf of the Ngapurrpinkakujarra Group, the Yingawunari Group, the Narlwan Group, the Luwaja Group, the Tururrutpa Group, the Beregumayin-Ngarrajanaggu Group (APPLICANT) and|
Northern Territory of Australia (FIRST RESPONDENT)
Wallco Pastoral Company Pty Ltd (SECOND RESPONDENT)
Telstra Corporation Ltd (THIRD 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 the Ngapurrpinkakujarra group, the Narrwan group, the Walanypirri group, the Yingawunarri group and the Narlwan 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 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, but not for vegetation clearing;
- 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;
- the right to look after significant cultural sites and places;
- the right to share or exchange subsistence and other traditional resources from the native title area; and
- 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. Nor do they confer a right to control access to the determination area or allow for commercial use of the determination area.
Non-exclusive native title rights held by related parties
Members of neighbouring estate groups and spouses of the applicant estate groups 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; and
- 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 the pastoral company Laverton Nominees Pty Ltd.
- Rights of use for the passage of traveling stock.
- The rights and interests of Telstra as the owner or operator of telecommunications facilities within the Determination Area.
- The interest of the Minister under the Heritage Conservation Act (NT).
- The rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in the pastoral lease.
- 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 as required 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. 27618.
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 occurred 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 access 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 prescribed body corporate and perform any relevant functions. The native title holders have 12 months to nominate a prescribed body corporate.
The determination concerns a native title application that was lodged on 29 July 2010 over the land and waters within the bounds of the Birrimba Pastoral Lease(Perpetual Pastoral Lease 935). The native title area covered by the application is approximately 2595 km2. The application was not accepted for registration pursuant to s109 of the Native Title Act 1993(Cth).
This judgement is one of six consent determinations made at the same hearing, over land and waters within the bounds of several pastoral leases in the north western area of the 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  FCA 582.
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);
- Montejinni West Pastoral Lease (Young on behalf of the Nirrina, Yingawunarri, Purrurruka, Yilyilimarri, and Billinara Groups);
- Dungowan Pastoral Lease(Wavehill on behalf of the Ngapurrpinkakujarra Group, the Narrwan Group, the Walanyipirri Group, the Yingawunarri Group, the Narlwan Group);
- 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 1993 (Cth) 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 1993 (Cth), the parties filed their 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 1993 (Cth) and the consent of the parties.
Mansfield J 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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