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Tilmouth v Northern Territory of Australia [2014] FCA 422

Category: Agreement
Date: 9 May 2014
Sub Category:Consent Determination (Native Title Act)
Location:Bushy Park, Northern Territory, Australia
The determination area is listed in Schedule A of the judgment. It is located in Bushy Park which is within the Central Desert Shire local government region. The area consists of 2,600 square kilometres of land approximately 90km north of Alice Springs.
Legal Status: Registered on the National Native Title Register
Legal Reference: Tribunal file no.: NTD38/2012
Subject Matter:Native Title
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2014/422.html
Summary Information:
Tilmouth v Northern Territory of Australia [2014] FCA 422

Between:

KENNY TILMOUTH, COLIN BIRD, MARGARET GOLDER, MARTIN MCMILLAN AND DESMOND YOUNG ON BEHALF OF THE MEMBERS OF THE ILKEWARN, ATWEL/ALKWEPETYE AND AYAMPE LANDHOLDING GROUPS (applicants);

and

NORTHERN TERRITORY OF AUSTRALIA (respondent).

Judge: White J

Where made: Edwards Creek

Determination:

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

Native title is held by the Ilkewarn, Atwel/Alkwepetye and Ayampe People.

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

- access and travel over any part of the land and waters;
- live on the land, and for that purpose, to camp, erect shelters and other structures;
- hunt, gather and fish on the land and waters;
- take and use the natural resources of the land and waters;
- access, take and use natural water on or in the land, except water captured by the holders of Perpetual Pastoral Lease 1122;
- light fires for domestic purposes, but not for the clearance of vegetation;
- access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs;
- 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;
- 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;
- share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;
- 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;
- 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.

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

- minerals (as defined in s 2 of the Minerals (Acquisition) Act 1953 (NT));
- petroleum (as defined in s 5 of the Petroleum Act 1984 (NT));
- prescribed substances (as defined in s 5 of the Atomic Energy Act 1953 (Cth) and s 3 of 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:

- NT Portion 687 - the interest of Samuel Les Goldsworthy and Heather Jessie Goldsworthy under Perpetual Pastoral Lease No. 112;
- NT Portions 5015 and 5016 - the interest of AustralAsia Railway Corporation under Crown Lease Term 1877;
- NT Portions 6152, 6153, 6271, 6272 and 6273 − the interest of the Northern Territory;
- the interests of the title holders under the following mining interests:
(i) EL 29132 − the interest of NT Minerals Aust. Pty Ltd;
(ii) EL 29556 − the interest of Wuhua Mining Corporation Pty Ltd;
(iii) EL 29133 − the interest of NT Minerals Aust. Pty Ltd;
(iv) EL 29252 − the interest of Enigma Mining Ltd;
(v) EL 28340 − the interest of Mithril Resources Ltd;
- 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 Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and under Schedule 3 to the Telecommunications Act 1997 (Cth), including the right:
A. to inspect land;
B. to install and operate telecommunication facilities; and
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 telecommunication facilities in and in the vicinity of the determination area in the performance of their duties; and
(iv) under any lease, licence or easement relating to its telecommunications facilities in the determination area;
- NT Portion 687 - 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 sections 38(2) to (6) of the Pastoral Land Act 1992 (NT);
- the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
- 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;
- 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.

Areas where native title does not exist:

Native title rights and interests have been wholly extinguished in the following areas of land and waters:

Public works

Those parts of the determination area being covered by public works as defined in section 253 of the Native Title Act that were constructed or established, or commenced to be constructed or established on or before before 23 December 1996, including:
(i) public roads including rural public roads (50m either side of the centre line), rural arterial roads and national highways;
(ii) gravel and fill pits established to maintain the roads referred to in (a) above;
(iii) government bores and associated works;
(iv) transmission water pipes (adjacent area 5m either side of the centre line);
(v) distribution water pipes measuring 150mm diameter or less (adjacent area of 1.5m either side of the centre line) and greater than 150mm diameter (adjacent area 5m either side of the centre line);
(vi) sewer pipes measuring 150mm diameter or less (adjacent area 1.5m either side of the centre line) and greater than 150mm (adjacent area 5m either side of the centre line);
(vii) bores, sewer pump stations, and overhead power lines.

Rights of the applicant, the State of Queensland and any respondents:

- liberty to apply to the Court on 14 days' notice to establish the precise location and boundaries of any public works and adjacent land and waters referred to under the non-native title rights and interests.

Provisions relevant to the Native Title rights:

- native title is held not to be held on trust
- Akwerrperl Corporation (ICN: 7772) is:
(i) to be the prescribed body corporate for the purposes of s 57(2) of the Act;
(ii) to perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.
Detailed Information:
Background

The native title application was first made on 29 November 2012. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Ilkewarn, Atwel/Alkwepetye and Ayampe landholding groups 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 claim.

The successful native title claim has provided the Ilkewarn, Atwel/Alkwepetye and Ayampe landholding groups with formal recognition of approximately 2,600 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 Ilkewarn, Atwel/Alkwepetye and Ayampe landholding groups in relation to part of the land and waters covered by the native title 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.

Related Entries

Organisation
  • Northern Territory of Australia - Respondent
  • People
  • Kenny Tilmouth, Colin Bird, Margaret Golder, Martin Mcmillan and Desmond Young on behalf of the members of the Ilkewarn, Atwel/Alkwepetye and Ayampe landholding groups - Native Title Applicants

  • Documents

    Map
    Tilmouth v Northern Territory of Australia [2014] FCA 422 - Map of determination area - ( PDF)
    Tilmouth v Northern Territory of Australia [2014] FCA 422 - judgement extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Applicant | Local Government | Native Title Applicants

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