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Jack v Northern Territory of Australia [2015] FCA 1250

Category: Agreement
Date: 26 November 2015
Sub Category:Consent Determination (Native Title Act)
Location:Located in the local government area of Roper Gulf Shire, Northern Territory, Australia
The determination area is outlined in Schedule A of the judgment. The Determination Area is within the area surrounding the township of Borroloola and running from the Gulf of Carpentaria roughly south and spreading east and west below the township. The Calvert Hills Perpetual Pastoral Lease No. 1169, and so the Determination Area, is an area of some 4,944 square kilometres.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Tribunal file no.: DCD2015/009; Federal Court file no.: NTD25/2014.
Alternative Names:
  • Calvert Hills Pastoral Lease
  • Subject Matter:Native Title
    URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/1250.html?stem=0&synonyms=0&query=title%28jack%20and%20northern%20territory%20%29
    Summary Information:
    Jack v Northern Territory of Australia [2015] FCA 1250

    Between:

    BETTY JACK, KATIE SECCIN, TOMMY ELLIS, JOHN CLARKE, DAISY SMART, RODNEY SMART, CHRISTOPHER SECCIN, ARCHIE SECCIN AND ANTHONY LANSEN ON BEHALF OF THE BIDIDA WUYALIYA, WELGUTJARA WUYALIYA/WURDALIYA, JULAGANYI WURDALIYA, BINADA WURDALIYA, BURRAGALINYA WURDALIYA/WUYALIYA, BARRGAJINA RRUMBURRIYA, JAJINGUJI WURDALIYA AND JUDUJINA RRUMBURRIYA ESTATE GROUPS (applicants);

    and

    NORTHERN TERRITORY OF AUSTRALIA, ARMOUR ENERGY LIMITED, TELSTRA CORPORATION and MCMILLAN PASTORAL COMPANY PTY LTD (respondents).

    Judge: Mansfield J

    Where made: Borroloola

    Determination:

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

    Native title is held by the following estate groups:

    - Bidida Wuyaliya estate group
    - Welgutjara Wuyaliya/Wurdaliya estate group
    - Julaganyi Wurdaliya estate group
    - Binanda Wurdaliya estate group
    - Burragalinya Wurdaliya/Wuyaliya estate group
    - Barrgajina Rrumburriya estate group
    - Jajinguji Wurdaliya estate group
    - Judujina Rrumburriya estate group.

    Native title rights in respect of the Determination Area consist of the following rights:

    Rights of the estate groups

    - the right to travel over, to move about and to have access to those areas;
    - the right to hunt and to fish on the land and waters of those areas;
    - the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
    - the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease No. 1169;
    - the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
    - the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
    - 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;
    - the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;
    - the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
    - 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;
    - the right to conduct activities necessary to give effect to the rights referred to above.

    Rights of other Aboriginal people

    In accordance with traditional laws and customs, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being:
    (a) members of estate groups from neighbouring estates;
    (b) spouses of the estate group members.

    The individuals referred to in paras (a) and (b) above have the following rights and interests:
    - the right to travel over, to move about and to have access to those areas;
    - the right to hunt and to fish on the land and waters of those areas;
    - the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
    - the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Pastoral Lease No. 1169;
    - the right to camp on those areas;
    - the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
    - the right to conduct activities necessary to give effect to the rights referred to above.

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

    - the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose;
    - the laws of the Northern Territory of Australia and the Commonwealth of Australia.

    There are no native title rights in or 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));
    - 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)),
    in the Determination Area.

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

    1. in relation to NT portion 668, the interests of McMillan Pastoral Company Pty Ltd under Perpetual Pastoral Lease No. 1169;

    2. the rights and interests of Telstra Corporation Limited:
    (a) as the owner or operator of telecommunications facilities within the Determination Area;
    (b) 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 the Telecommunications Act 1997 (Cth), including rights:
    (i) to inspect land;
    (ii) to install and operate telecommunications facilities; and
    (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
    (d) 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;
    (e) under any lease, license, access agreement or easement relating to its telecommunications facilities in the Determination Area;

    3. the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in Perpetual Pastoral Lease No. 1169 and ss 38(2) - (6) of the Pastoral Land Act (NT);

    4. the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act (NT);

    5. rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties;

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

    7. the following interests granted under the Mineral Titles Act (NT) and Petroleum Act (NT), depicted in Schedule E:
    (a) Exploration Licence Title No. 28487 granted on 2 August 2011;
    (b) Exploration Licence Title No. 28535 granted on 20 September 2011;
    (c) Exploration Licence Title No. 29831 granted on 4 September 2013
    (d) Exploration Licence Title No. 27241 granted on 9 November 2009;
    (e) Exploration Licence Title No. 27737 granted on 6 August 2010;
    (f) Exploration Licence Title No. 27240 granted on 9 November 2009;
    (g) Exploration Licence Title No. 29626 granted on 29 April 2013;
    (h) Exploration Licence Title No. 24814 granted on 18 April 2006;
    (i) Exploration Licence Title No. 29654 granted on 29 April 2013;
    (j) Exploration Licence Title No. 30590 granted on 28 May 2015;
    (k) Exploration Permit Title No. 174 granted on 11 December 2012;
    (l) Exploration Permit Title No. 190 granted on 11 December 2012;
    (m) Exploration Permit Title No. 192 granted on 3 October 2013;

    8. the rights and interests of the parties under the following agreements:
    (a) Co-existence and Exploration Deed for Exploration Permit Title No. 174 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012;
    (b) Co-existence and Exploration Deed for Exploration Permit Title No. 190 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012;
    (c) Co-existence and Exploration Deed for Exploration Permit Title No. 192 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 13 August 2013.

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

    - to the extent, if at all, that the exercise of the native title rights and interests referred conflicts with the exercise of the non-native title rights and interests, the non-native title rights and interests prevail over, but do not extinguish, the native title rights and interests.

    Provisions relevant to the Native Title rights:

    - the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC, 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 to be held in trust for the native title holders.
    Detailed Information:
    Background

    The native title application was first made on 30 July 2014, seeking recognition of native title rights and interests over the land and waters within the bounds of the Calvert Hills Pastoral Lease (Perpetual Pastoral Lease No. 1169). It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the estate 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. Various parts of the Calvert Hills Pastoral Lease No. 1169 were the subject of a number of former native title determination applications including NTD 6019 of 2000 (Wollogorang), NTD 6004 of 2001 (Calvert Hills), NTD 6020 of 2001 (Calvert Hills No.2), NTD 6024 of 2001 (Kiana Calvert), NTD 6032 of 2001 (North Calvert Hills) and NTD 6058 of 2001 (Pungalina). Those applications have since been amended or withdrawn so as to remove any claims which overlap the Determination Area.

    It is one of a number of applications proposed to be heard together, because they are geographically proximate.

    The successful native title claim has provided the claimants with formal recognition of approximately 4,944 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 claimants in relation to part of the land and waters covered by the claim. A 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
  • Armour Energy Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • McMillan Pastoral Company Pty Ltd - Respondent
  • People
  • Betty Jack and others - Native Title Applicants

  • Documents

    Document
    Jack v Northern Territory of Australia [2015] FCA 1250 - Consent Determination Extract - ( PDF | PDF)
    Jack v Northern Territory of Australia [2015] FCA 1250 - Schedule B Map of Determination Area - ( PDF)
    Jack v Northern Territory of Australia [2015] FCA 1250 - schedule E Map of Interests Granted - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | Native Title Claimants (registered) (Australia) | Native Title Determination (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Registers | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Claimants (unregistered) (Australia) | Native Title Representative Body (NTRB) (Australia)

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