Risk v Northern Territory of Australia  FCA 404
|Category: ||Case Law|
|Binomial Name: ||Federal Court of Australia|
|Date: ||17 May 2006|
|Sub Category:||Litigated Determination|
|Location:||Darwin, Northern Territory, Australia|
|Areas in and around Darwin, in the Northern Territory of Australia.|
|Legal Status: ||Registered on the National Native Title Register (|
|Legal Reference: ||Federal Court file no.: NTD6013/1998; NTD6017/1998|
|Summary Information: |
Risk v Northern Territory of Australia  FCA 404
Between: William Risk, Helen Secretary & Pauline Baban on behalf of the Larrakia People and Kevin Lance Quall on behalf of the Danggalaba and Kulumbiringin People (APPLICANTS) AND Northern Territory of Australia and Darwin City Council and Amateur Fishermen’s Association of the Northern Territory (RESPONDENTS).
Judge: Mansfield J
Where made: Darwin
Determination: Native title does not exist
Location: The claim encompassed approximately 30 square kilometres of mainly Crown land and waters in and around Darwin, in the Northern Territory.
The native title claimants are the Larrakia, Danggalaba and Kulumbiringin People.
The determination area The judgment describes the determination area as follows:
‘The claim area in the consolidated proceedings covers parts of metropolitan Darwin and its surrounds on the Darwin Peninsula. Port Darwin is a protected harbour accessed from the north. It is surrounded on the east by the Darwin Peninsula and on the west by the Cox Peninsula. The claim area is that on the eastern side of Port Darwin extending eastwards and southwards. The East Arm of the harbour joins up with the Elizabeth River which enters Port Darwin from the east. The East Arm and the Middle Arm of the harbour are straddled by a wedge of land bounded by the East Arm and the Elizabeth River on its northern side and by the Middle Arm and then (to the east) Haycock Reach and Blackmore River (to the south east). The western extremity of that wedge of land into Port Darwin is called Middle Point. To the south of Middle Point in the entrance to the Middle Arm is Channel Island.
The claim area comprises many sections of land and waters, including mangrove swamps, within that general area. It is overall an area of about 30 kilometres square. The claim area does not encompass all that area, but generally those parts of the land where there has not been residential or commercial development. The claim area encompasses mostly areas of Crown land as well as some land held by the Darwin City Council (DCC), and some land held by the Palmerston City Council, and includes waters adjoining areas of the land and mangrove swamps over which a claim has been made.
To the north-east of Darwin lies the suburb of Leanyer. Leanyer, along with Holmes Jungle Nature Park and areas to its south-east, at the base of the Shoal Bay Peninsula and Howard Peninsula, including Howard Springs Nature Reserve, is within the broader claim area, so that parts of that area are within the claim area.
Palmerston…also has areas to its south, south east and south west which are the subject of the claim.’ (Risk v Northern Territory of Australia  FCA 404, paras 15-21).
No native title rights were found to exist in the claimed areas.
|Detailed Information: |
The proceedings were a consolidation of 19 applications that had been filed by three different applicant groups. The initial decision, which did not contain any formal determination of native title, was handed down by Justice Mansfield on 13 April 2006 (Risk v Northern Territory of Australia  FCA 404). The determination finding that native title did not exist in relation to any of the land or waters was made by Justice Mansfield on 17 May 2006.
Mansfield J’s judgment considered three periods of history to determine the content of traditional rights and customs; whether those traditional rights and customs were still in existence in the claimed areas; and whether the claimants were the same society as existed both at sovereignty (1825) and at settlement of the area (1869). The court found that the Larrakia people had a normative system consistent with a complex and sophisticated society at the time of the European settlement of Darwin. However, by the mid 20th century, the court found that the practice of traditional Larrakia laws and customs had declined – for example, Justice Manfield felt that a corroboree for tourists did not necessarily constitute ‘ceremony’ (Risk v Northern Territory of Australia  FCA 404, at 319). The court also felt that, among other factors it considered, the Larrakia’s system of clan estates had declined in the early 20th century due to the spread of disease, the removal of Aboriginal people to the Kahlin Compound north-west of Darwin, and the separation of mixed-descent children from their parents.