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The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539;  FCA 472
|Binomial Name:||Federal Court of Australia|
|Date:||23 April 2004|
|Sub Category:||Litigated Determination|
|Location:||Proposed Davenport/Murchison Ranges National Park , Northern Territory, Australia|
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|Legal Status:||Registered on the National Native Title Register|
|Legal Reference:||Federal Court file no.: NTD6002/98; Tribunal file|
|The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539;  FCA 472|
Between:The Alyawarr, Kaytetye, Warumungu, Wakey Native Title Claim Group (APPLICANTS) AND
Northern Territory of Australia and Conservation Land Corporation (RESPONDENTS)
Judge: Mansfield J
Determination: Native title exists in the entire determination area.
The decision was subsequently appealed by the Northern Territory to the Full Federal Court where Mansfield J's finding was upheld in part.
|This determination arises from a native title claim lodged with the National Native Title Tribunal in 1995. The claim was lodged by the Central Land Council on behalf of the Alyawarr, Kaytetye, Warumungu, Wakay Native Title Group. The Native Title Group sought a determination of their native title rights and interests over an area of 1,143 square kilometres southeast of Tennant Creek. The claim area is adjacent to two sets of ranges - the Davenport and the Murchison Ranges. This area is known by the native title group as 'Iytwelepwenty'. It comprises two areas of land - to the east of the Stuart Highway and southeast of Tennant Creek. It also includes blocks located on a site for the proposed Davenport Ranges National Park. This area was previously pastoral lease land. The second part of the claim area includes a small area of vacant Crown land known as the Hatches Creek Township. The land was originally set aside in 1953 but the township was never established.|
The matter was referred to the Federal Court in 1998 after the parties to the claim failed to reach agreement. The Court's decision was handed down by Justice Mansfield in April 2004. The Court recognised the claimant group's native title rights which conferred exclusive rights and interests over the proposed Hatches Creek Township Area and non-exclusive rights over the two blocks of land constituting the proposed Davenport Ranges National Park.
The nature and extent of the native title rights and interests identified are set out below:
'(a) the right to hunt and fish together and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax and to have access to and use of water on or in the land;
(b) the right to live on the land, to camp, erect shelters and other structures, and to travel over and visit any part of the land and waters;
(c) the right to engage in cultural activities on the land, to conduct ceremonies and hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters and to participate in cultural practices relating to birth and death, including burial rights;
(d) the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;
(e) the right to make decisions about access to the land and waters by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(f) the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;
(g) the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters;
(h) the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters;
(i) the right to determine and regulate the membership of and recruitment to a landholding group'. (See Order 3).
The native title rights and interests identified are exercisable in accordance with the traditional laws and customs of the native title holders. Other non native title rights are also identified including rights under lease agreements held by the Conservation Land Corporation, the statutory functions and powers of the Northern Territory Parks and Wildlife Commission, statutory and executive Crown rights and the interests of members of the public with rights of access to the land arising under statute. (See Order 7).
Order 8 of the determination sets out the relationship between the native title rights and interests and the other non native title rights and interests. The latter co-exist with the native title rights and interests. Where the non native title rights are inconsistent with the continued existence, enjoyment or exercise of the native title rights, the native title rights continue to exist, but have no effect in relation to the other rights and interests. Further, the native title rights and interests do not prevent the doing of any activity permitted by the other non native title rights which prevail over native title rights and interests but do not extinguish them.
Areas where several public works are situated are excluded from the determination area.
The determination brought the number of native title determinations made in Australia to 50.
The decision was upheld in part by the Full Federal Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group  FCAFC 135 (29 July 2005). The claimant group was found to hold communal rights over the determination area, rather than being a collection of seven smaller 'estate' groups.
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