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Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia  FCA 766 (14 July 2011)
|Binomial Name:||Federal Court of Australia|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Kurundi Station, Northern Territory , Australia|
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|Kurundi Station is located 140 kilometres south east of Tennant Creek in the Northern Territory of Australia.|
|Legal Status:||Registered on the National Native Title Register|
|Legal Reference:||National Native Title Tribunal No: DC01/17 Federal Court No: NTD6017/2001|
|Subject Matter:||Access | Mining and Minerals | Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition Agreement / Acknowledgement | Recognition of Traditional Rights and Interests|
|Between: Pilot Carr Jungarrayi & Ors on behalf of the members of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups; (APPLICANT) and |
Northern Territory of Australia; (FIRST RESPONDENT)
and Peter Walker Saint; (SECOND RESPONDENT)and
Brenda Marie Saint (THIRD RESPONDENT)
Judge: Reeves J
Where made: Injaridjin Waterhole
Determination: Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
Native title is held by the Mirtartu, Warupunju, Arrawajin and Tijampara landholding groups.
A person is a member of the Mirtartu, Warupunju, Arrawajin or Tijampara landholding groups either through descent (including adoption) or through acceptance by senior members of the landholding groups.
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right of access;
- the right to live on the land and camp and erect shelters for that purpose;
- the right to hunt and to fish;
- the right to gather and use natural resources from the area;
- the right to access and use the natural waters;
- the right to light fires for domestic purposes;
- the right to protect and maintain important cultural sites;
- the right to conduct and participate in cultural activities, ceremonies, meetings, cultural practices relating to birth and death including burial rites and to pass on the knowledge of the physical and spiritual attributes of sites and places under traditional laws and customs;
- the right to make decisions about the use and enjoyment of the land under the traditional laws and customs;
- the right to share and exchange the natural resources from the area; and
- the right to be accompanied by non-native title holders where that person is required for cultural activities or ceremonies, or who under the traditional laws and customs have rights in the area, or by persons who are required to assist in or record traditional activities.
Non-native title rights and interests that exist within the determination area
These rights can be summarised as:
- the interest of the pastoral lease holders Peter Walker Saint and Brenda Marie Saint under Perpetual Pastoral Lease No 1109;
- various specified mining and petroleum tenemants;
- the rights of Aboriginal persons pursuant to the reservation in favour of Aboriginal people contained in the pastoral lease and identified in s 38(2)-38(6) of the Pastoral Land Act 1992 (NT);
- The rights of Aboriginal persons under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
- rights and interests of persons where those rights have been granted by the crown or conferred by statute.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title but will not extinguish.
Extinguishment occurred over parts of the determination area where, prior to the date of the native title determination, there was the construction of:
- pastoral improvements such as houses, bores, stockyards and airstrips;
- public works such as public roads, bores, gravel pits and public works such as transmission water pipes and sewerage systems.
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 will be the native title holder and perform the functions required under the Native Title Act 1993 (Cth). The name of the prescribed body corporate will be provided to the court within 12 months.
The determination concerns a native title application that was lodged on the 28 February 2001 seeking the recognition of native title rights and interests in Kurundi Station (Northern Territory Portion 716, held under Perpetual Pastoral Lease 1109). The determination area is approximately 3,800 square kilometres. The application was accepted for registration pursuant to s109 of the Native Title Act 1993 (Cth).
The native title claimants have maintained their strong connection to their country with many of the claimants and their ancestors having lived and worked at the station over many decades as stockmen (Central Land Council, 2011). This allowed the landholding groups to stay on their country, learn their stories and abide by their Law (Central Land Council, 2011).
Native title claimant Pilot Carr was born at the station and lived and worked as a stockman on Kurundi Station most of his life. The Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups hope that the native title determination will help them to continue to protect their country and sacred sites on Kurundi Station into the future. The Native Title Determination Application was originally filed in response to the desire of traditional owners to better protect sacred sites and to safeguard their rights (Central Land Council, 2011).
Details of Judgement
Parties to the determination reached an agreement as to the terms of a proposed determination of native title pursuant to s87 of the Native Title Act 1993 (Cth). The applicant then filed the agreement for determination.
Justice Reeves was satisfied that a determination of native title in the terms of the agreement was within the power of the court and appropriate. In determining this, Justice Reeves held that free and informed agreement between the parties is critical especially the conduct of the State respondent. Other critical factors include whether the parties have had independent and competent legal representation, whether the terms of the proposed consent order are clear and whether there has been mediation.
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