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Wavehill v Northern Territory of Australia [2013] FCA 1086

Category: Agreement
Date: 29 October 2013
Sub Category:Consent Determination (Native Title Act)
Location:Located in the vicinity of Wavehill, Northern Territory, Australia
The Determination Area is located in the vicinity of Wavehill in the Northern Territory. It is located to the east of the Alice Springs - Darwin Railway. Native title exists in the parts of the Determination Area identified as "NT portions 3049, being land the subject of Perpetual Pastoral Lease No. 1211." Native title does not exist in those areas where they have been extinguished. To the extent of any inconsistency between a written description and that expressed in a map, the written description will prevail.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference: Tribunal file no.: DCD2013/018 Federal Court no.: NTD46/2011
Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership
URL: http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/NNTR_details.aspx?NNTT_Fileno=DCD2013/018
Summary Information:
Between:
JIMMY WAVEHILL (ON BEHALF OF THE WUBALAWUN GROUP, THE JALALABAYN GROUP, THE BADPA (DALY WATERS) GROUP AND THE LIWAJA GROUP (APPLICANTS); and

NORTHERN TERRITORY OF AUSTRALIA (FIRST RESPONDENT).

Judge: Mansfield J
Where made: Mataranka

Determination:

Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights in relation to land.

Native title is held by

The land and waters within the Determination Area comprise whole or part of four (4) estates. These estates are held by the following estate groups:

(a) the Wubalawun estate group;
(b) the Jalalabayn estate group;
(c) the Badpa (Daly Waters) estate group; and
(d) the Liwaja estate group.

In addition to these four groups, other Aboriginal people with rights and interests in the Determination Area include:
(a) members of estate groups from neighbouring estates; and
(b) spouses of the estate group members.

Collectively, these persons hold native title within the Determination Area.

Each estate group includes persons who are members of the group by reason of:
(a) patrilineal descent;
(b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent;
(c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof.

No native title rights and interests exist in the Determination Area in relation to:

- minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT));
- petroleum (as defined in s 5 of the Petroleum Act (NT)); and
- prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)).

Non-exclusive native title rights include:

(a) the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas, except water captured by the holders of Perpetual Pastoral Lease No. 1121;
(e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct and to participate in the following activities on those areas:

(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 that are of significance under their traditional laws and customs;

(h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;
(i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
(j) the right to be accompanied on to those areas 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 areas;
(ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;
(iii) people required by the estate group members to assist in, observe, or record traditional activities on the
areas;

(k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof."

The native title rights and interests outlined above do not confer on the estate group members possession, occupation, use and enjoyment of the Determiantion Area to the exclusion of all others.

Members of estate groups from neighbouring estates and spouses of the estate group members include non-exclusive rights to use and enjoy those parts of the Determination Area, including:

(a) "the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild
tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas, except water captured by the holders of
Perpetual Pastoral Lease No. 1121;
(e) the right to camp on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof.

These native title rights and interests do not confer on the members of estate groups from neighbouring estates and spouses of the estate group members, possession, occupation, use and enjoyment of the Determination Area, to the exclusion of all others.

Other Interests

A number of 'other interests' are identified in the Extract. The nature and extent of these interests are those created by the Crown or otherwise.

The Extract notes an extensive list of 'other interests' which can be accessed through the attached document. Some of these interests include:

- the rights and interests of Telstra Corporation Limited and its employees, agents or contractors, to inspect, install and operate telecommunications facilities or alter, replace, maintain and repair telecommunications facilities;
- Aboriginal persons (whether or not they are native title holders) associated with the reservation in favour of such Aboriginal persons within the pastoral lease;
- rights of access by employees, servants, agents or instrumentality of the Northern Territory or Commonwealth or other statutory body as required to perform statutory duties; and
- the following interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT), as depicted in
Schedule E:

(i) Exploration Licence Title No. 28184 granted on 16 February 2011;
(ii) Exploration Licence Title No. 28185 granted on 16 February 2011;
(iii) Exploration Permit Title No. 167 granted on 10 January 2013;
(iv) Exploration Permit Title No. 168 granted on 10 January 2013.

Conflict of exercise of rights and interests
12. To the extent, if at all, that the exercise of the native title rights and interests referred to in clauses 9 and 10
conflicts with the exercise of the rights and interests of the persons referred to in clause 11, the rights and
interests of the persons referred to in clause 11 prevail over, but do not extinguish, the native title rights
referred to in clauses

Determination

The native title determination will take effect subject to the orders of the Federal Court and the operation of the Native Title Act, with native title held in trust for the native title holders set out in the Determination.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

Determination Area

The Determination Area is made up of NT portion 3049, being land the subject of Perpetual Pastoral Lease No. 1211.

Native Title exists within the areas of land and waters comprising NT portions 3049, being land the subject of Perpetual Pastoral Lease No. 1211, except those parts
thereof referred to in Schedule D. The Extract fails to include a copy of Schedule D.

Areas where native title does not exist

The native title rights and interests have been wholly extinguished in a number of areas.

These areas include parts of the Determination Area which are covered by public works that were constructed, established or situated prior to 23 December 1996, or commenced to be constructed or established before that date. The Extract provides a non-exhaustive list of such public works that includes reference to:
- public roads;
- Government bores; and
- electricity transmission lines.

For the full list, see the attached Extract.

Background to the Determination

On 14 October 2011, JIMMY WAVEHILL (ON BEHALF OF THE WUBALAWUN GROUP, THE JALALABAYN GROUP, THE BADPA (DALY WATERS) GROUP AND THE LIWAJA GROUP (the Applicant) made a native title determination application over the lands and waters within the boundaries of the Middle Creek Pastoral Lease (Lease No. 1121). The Applicant and First Respondent, the Northern Territory of Australia, reached an agreement and proposed a determination of native title in relation to that area of pastoral lease. The terms of that agreement were endorsed by the Federal Court of Australia in this decision.
Outcomes:
Native title exists in parts of the determination area.

Related Entries

Agreement
  • Wavehill v Northern Territory of Australia [2011] FCA 581
  • Wavehill v Northern Territory of Australia [2011] FCA 584
  • Wavehill v Northern Territory of Australia [2012] FCA 671
  • Wavehill v Northern Territory of Australia [2012] FCA 666
  • Brown v Northern Territory of Australia [2013] FCA 1082
  • Organisation
  • National Native Title Tribunal
  • Federal Court of Australia
  • Roper Gulf Shire Council
  • Northern Territory of Australia - Signatory
  • Legislation
  • Native Title Amendment Act 1998 (Cth)
  • Atomic Energy Act 1953 (Cth)
  • Atomic Energy (Control of Materials) Act 1946 (Cth)
  • Petroleum Act (NT)
  • Minerals (Acquisition) Act (NT)
  • Pastoral Land Act 1992 (NT)
  • Northern Territory Aboriginal Sacred Sites Act 1989 (NT)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Post and Telegraph Act 1901(Cth)
  • People
  • The Badpa Group
  • Wubalawun Group, the Jalalabayn Group, the Badpa (Daly Waters) Group and the Liwaja Group - Signatory

  • Documents

    Map
    Wavehill v Northern Territory of Australia [2013] FCA 1086 Schedule B Map of Determination Area - ( PDF)
    Wavehill v Northern Territory of Australia [2013] FCA 1086 Schedule E - Map of interests granted - ( PDF)
    Wavehill v Northern Territory of Australia [2013] FCA 1086 Extract - ( PDF)
    Wavehill v Northern Territory of Australia [2013] FCA 1086 Federal Court decision - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Claimant Application (Native Title Act 1993 (Cth)) (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Registers | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Determination (Australia) | Native Title Applications/Claims (Australia) | Native Title Claimants (registered) (Australia) | Native Title Applicants

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