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Apetyarr v Northern Territory of Australia [2014] FCA 1088

Category: Agreement
Date: 14 October 2014
Sub Category:Consent Determination (Native Title Act)
Location:Located in the Sandover region, Northern Territory, Australia
Located in the local government area of Barkly Shire, the consent determination covers lands and waters located in the Sandover region of the Northern Territory. This area is covered by the Ammaroo, Derry Downs, Elkedra, and Murray Downs pastoral leases.
Legal Status: Registered on the National Native Title Register
Legal Reference: Tribunal file no.:DCD2014/010; Federal Court file no.: NTD6069/2001.
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/1088.html?stem=0&synonyms=0&query=Banjo%20Morton%20Apetyarr
Summary Information:
Apetyarr v Northern Territory of Australia [2014] FCA 1088

Between:

BANJO MORTON APETYARR, MARTIN SPRATT APETYARR, LINDA DOBBS APWERL, LULU TEECE APETYARR AND COLLEEN MORTON KNGWARREY ON BEHALF OF THE MEMBERS OF THE AHARRENG, AKANENG, AKWERANTY, ANWERRET, ALARILPW, ANGKEPERRETYEY, ANTARRENGENY, AREYN, ARLANGKW, ARLPAW, ARNAPWENTY IMANGKER, AATNERLELNGK, ATWENGERRP, ILLEYARM, IRRERLERR, KWERRKEPENTY, LYENTYAWELL ILLEPARANEM, NTEWERREK, PWERRK AND TYAW LANDHOLDING GROUPS (applicant);

and

NORTHERN TERRITORY OF AUSTRALIA, AMMAROO PTY LTD, DA WEIR PTY LTD, L&S NOMINEES PTY LTD AND ROY HENRY DRIVER (respondents).

Judge: Mortimer J

Where made: Honeymoon Bore

Determination:

Native title exists in part of the determination area. It consists of non-exclusive native title rights.

Native title is held by the Aharreng, Akaneng, Akweranty Anwerret, Alarilpw, Angkeperretyey, Antarrengeny, Areyn, Arlangkw, Arlpaw, Arnapwenty Imangker, Atnerlelengk, Atnwengerrp, Ileyarn, Irrerlerr, Kwerrkepenty, Lyentyawel Ileparranem, Ntewerrek, Pwerrk and Tyaw landholding groups.

The determination area

- the determination area comprises NT Portions 749, 757, 1289, 1290, 2286, 3431, 4260, 4868, 5162, 5163 and 6302 being the land and waters described in Schedule A and depicted on the map comprising Schedule B;
- native title does not exist in those parts of the determination area described in Schedule C.

Non-exclusive native title rights and interests that exist over the determination area consist of:

- the right to access and travel over any part of the land and waters;
- the right to live on the land, and for that purpose, to camp, erect shelters and other structures;
- the right to hunt, gather and fish on the land and waters;
- the right to take and use the natural resources of the land and waters;
- the right to access, take and use natural water on or in the land, except water captured by the holders of Perpetual Pastoral Leases 1105, 1000, 1107 and 1139;
- the right to light fires for domestic purposes, but not for the clearance of vegetation;
- the right to access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs;
- the right to conduct and participate in the following activities on the land and waters:
(i) cultural activities;
(ii) ceremonies;
(iii) meetings;
(iv) cultural practices relating to birth and death including burial rites;
(v) teaching the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs,
and, subject to the rights of any person arising under the laws in force in the Northern Territory to be present on the land, the right to privacy in the exercise and enjoyment of those activities;
- the right to speak for and make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders;
- the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;
- the right to be accompanied on the land and waters 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 on the land and waters;
(ii) people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the native title holders;
(iii) people required by the native title holders to assist in, observe, or record traditional activities on the areas.

The native title rights and interests are subject to and exercisable in accordance with:

- the valid laws of the Northern Territory of Australia and the Commonwealth of Australia; and
- the traditional laws acknowledged and traditional customs observed by the native title holders.

The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others.

The native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose.

There are no native title rights in or in relation to:

- minerals as defined in the Minerals Acquisition Act 1953 (NT);
- petroleum as defined in the Petroleum Act (NT);
- prescribed substances as defined in the Atomic Energy Act 1953 (Cth) and the Atomic Energy (Control of Materials) Act 1946 (Cth).

Non-native title rights and interests that exist within the determination area:

The nature and extent of the other interests in the determination area are:

(a) the interests of the pastoral leaseholders of:
Perpetual Pastoral Lease No. 1105;
Perpetual Pastoral Lease No. 1107;
Perpetual Pastoral Lease No. 1139;
Perpetual Pastoral Lease No. 1000;

(b) NT Portion 6302 - the interest of the Dinnie Excision (Imperrenth) Aboriginal Corporation as the holder of a fee simple estate (subject to Imperrenth ILUA DI2003/012 entered on the Register of Indigenous Land Use Agreement on 14 November 2003);

(c) NT Portion 4260 - valid rights of use for the passage of travelling stock;

(d) the interests of the parties in respect to NT Portions 5162, 5163 and 4868 un-der the Ammaroo Indigenous Land Use Agreement.

(e) the interests of the holders of the following mining and petroleum tenements granted pursuant to the Mineral Titles Act (or its predecessor) and the Petroleum Act respectively:
No. EL 24726 (Expiry Date: 31/03/2014) Held by: Nupower Resources Ltd
No. EL 25183 (Expiry Date: 18/04/2013 ) Held by: Territory Phosphate Pty Ltd
No. EL 25184 (Expiry Date: 18/04/2013 ) Held by: Territory Phosphate Pty Ltd
No. EL 25185 (Expiry Date: 18/04/2013) Held by: Territory Phosphate Pty Ltd
No. EL 26196 (Expiry Date: 21/07/2013) Held by: Spinifex Uranium Pty Ltd
No. EL 26227 (Expiry Date: 18/02/2014 ) Held by: Nupower Resources Ltd
No. EL 26228 (Expiry Date: 18/02/2014 ) Held by: Nupower Resources Ltd
No. EL 26915 (Expiry Date: 07/04/2015 ) Held by: Fertoz Pty Ltd
No. EL 27965 (Expiry Date: 24/10/2016 ) Held by: AMI Resources Pty Ltd
No. EL 27987 (Expiry Date: 26/10/2016 ) Held by: Nupower Resources Ltd
No. EL 28211 (Expiry Date: 16/03/2017 ) Held by: AFMECO Mining and Exploration Pty Ltd
No. EL 28402 (Expiry Date: 19/06/2017) Held by: Rum Jungle Resources Ltd
No. EL 28403 (Expiry Date: 19/06/2017 ) Held by: Rum Jungle Resources Ltd
No. EL 28648 (Expiry Date: 24/10/2017) Held by: Nupower Resources Ltd
No. EL 28727 (Expiry Date: 02/10/2017 ) Held by: ABM Resources NL
No. EL 28748 (Expiry Date: 30/10/2017 ) Held by: ABM Resources NL
No. EL 28764 (Expiry Date: 01/11/2017 ) Held by: Australia Mining & Gemstone Co Pty Ltd
No. EL 28978 (Expiry Date: 10/04/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 28979 (Expiry Date: 05/03/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 28980 (Expiry Date: 10/04/2018) Held by: Rum Jungle Resources Ltd
No. EL 26227 (Expiry Date: 18/02/2014) Held by: Nupower Resources Ltd
No. EL 28978 (Expiry Date: 10/04/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 28979 (Expiry Date: 05/03/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 28980 (Expiry Date: 10/04/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 29266 (Expiry Date: 02/08/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 29267 (Expiry Date: 02/08/2018 ) Held by: Rum Jungle Resources Ltd
No. EL 29305 (Expiry Date: 09/09/2018 ) Held by: China Australia Land Resources Pty Ltd
No. EL 29373 (Expiry Date: 13/09/2018 ) Held by: Central Australian Phosphate Pty Ltd
No. EL 29374 (Expiry Date: 13/09/2018 ) Held by: Central Australian Phosphate Pty Ltd
No. EL29773 (Expiry Date: 31.07.2019 ) Held by: Rum Jungle Resources Ltd
No. EL 29826 (Expiry Date: 21.08.2019 ) Held by: Rum Jungle Resources Ltd
No. EL 27965 (Expiry Date: 24.10.2016 ) Held by: AMI Resources Pty Ltd
No. EP 103 (Expiry Date: 20/05/2013 ) Held by: Texalta Australia Pty Ltd, Petrofrontier (Australia) Pty Ltd
No. EP 127 (Expiry Date: 13/06/2013 ) Held by: Northern Territory Oil Limited, Baraka Petroleum Ltd, Petrofrontier (Australia) Pty Ltd
No. EP 128 (Expiry Date: 13/06/2013 ) Held by: Northern Territory Oil Limited, Baraka Petroleum Ltd, Petrofrontier (Australia) Pty Ltd

(f) the rights and interests of Telstra Corporation Limited:
(i) as the owner or operator of telecommunications facilities within the determination area;
(ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Acts 1989 (Cth), the Telecommunications Act 1991 (Cth) and under Schedule 3 to the Telecommunications Act 1997 (Cth), including rights:
A. to inspect land;
B. to install and operate telecommunication facilities; and
C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities; and
(iii) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the determination area in the performance of their duties;
(iv) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the determination area.

(g) in relation to NT Portions 749, 757, 1289, 1290, 2286, 3431, 5162 and 5163 the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases set out in section 38(2) to (6) of the Pastoral Land Act 1992 (N.T.);

(h) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (N.T.);

(i) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;

(j) the interests of persons to whom valid or validated rights and interests have been:
(i) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or
(ii) conferred by statute.

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- to the extent that the continued existence, enjoyment or exercise of the native title rights and interests is inconsistent with the existence, enjoyment or exercise of the non-native title rights and interests, the non-native title rights and interests and the doing of any activity required or permitted to be done by or under the non-native title interests, prevail over, but do not extinguish, the native title rights and interests;
- in relation to the land is set out in the Irretety ILUA which was entered on the Register of Indigenous Land Use Agreements on 14 November 2003 the non-extinguishment principle applies:
(a) the grant of the estate in fee simple is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests;
(b) the native title continues to exist, but has no effect in relation to the grant;
(c) if the grant or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect;
(d) if the grant or its effects are removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent.

Provisions relevant to the Native Title rights:

- Kaytetye Alyawarr Awenyerraperte Ingkerr-wenh Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;
- native title is not held in trust for the native title claimants.
Detailed Information:
Background

The native title application was first made on 19 December 2001. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Alyawarr and Kaytetye People as the holders of native title rights and interests over their country.

There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Alyawarr and Kaytetye People claim.

The successful native title claim has provided the Alyawarr and Kaytetye People with formal recognition of approximately 18,800 square kilometres of land.

Details of Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Alyawarr and Kaytetye People in relation to part of the land and waters covered by the claim. The signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The court was satisfied that a determination of native title was within the power of the court.

ILUAs and this determination

The agreement subject to this consent determination was not made subject to or in connection with an ILUA. However, the Imperrenth ILUA DI2003/012 (14 November 2003) was referred to with respect to other rights and interests in the determination area.

Related Entries

Agreement
  • Ammaroo Indigenous Land Use Agreement (ILUA)
  • Imperrenth (Community Living Area) Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Northern Territory of Australia - Respondent
  • Ammaroo Pty Ltd - Respondent
  • DA Weir Pty Ltd - Respondent
  • L & S Nominees Pty Ltd - Respondent
  • Kaytetye Alyawarr Awenyerraperte Ingkerr-wenh Aboriginal Corporation RNTBC
  • Event
  • Barrow Creek (Kaytetye) Land Transfer
  • People
  • Banjo Morton Apetyarr and others - Native Title Applicants
  • Alyawarr and Kaytetye Peoples
  • Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group
  • Kaytetye People
  • Alyawarr, Kaytetye, Arrapere, Pwetyalaneme, Mappette, Oorobora and Atnwallya Peoples
  • Case Law
  • Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCA 135 (29 July 2005)
  • The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539; [2004] FCA 472

  • Documents

    Map
    Apetyarr v Northern Territory of Australia [2014] FCA 1088 - Schedule B Map of Determination Area - ( PDF)
    Apetyarr v Northern Territory of Australia [2014] FCA 1088 - Consent Determination Extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Determination (Australia) | Native Title Registers | Native Title Representative Body (NTRB) (Australia) | Prescribed Body Corporate (PBC) (Native Title Act) (Australia) | Non-Extinguishment Principle | National Native Title Tribunal (NNTT) (Australia) | Native Title Applications/Claims (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia)

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