Nelson v Northern Territory of Australia  FCA 1343 (8 December 2010)
|Binomial Name: ||Federal Court of Australia|
|Date: ||8 December 2010|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||Newhaven Wildlife Sanctuary|
|State/Country:||Northern Territory, Australia|
|The determination area consists of land and waters within NT Portion 2406 on Survey Plan S 831085. This Portion consists of approximately 2,610 square kilometres of land and is located approximately 300 kilometres north-west of Alice Springs. The determination area includes the Newhaven Wildlife Sanctuary|
|Legal Status: ||Registered on the National Native Title Register (of native title determinations)|
|Legal Reference: ||Federal Court No: NTD6028/2000
Native Title Tribunal No: DC00/26|
|Subject Matter:||Access | Cultural Heritage | Environmental Heritage | Fishing | Land Use | Native Title|
|Summary Information: |
|Nelson v Northern Territory of Australia  FCA 1343 (8 December 2010)|
Harry Jakamarra Nelson, Jacob Jungarrayi Spencer and Bob Jupurrurla Dixon (APPLICANTS) and
Northern Territory of Australia and Australian Wildlife Conservancy (RESPONDENTS)
Judge: Reeves J
Where made: Newhaven
Native title exists in parts of the determination area
The determination area consists of NT Portion 2406 on Survey Plan S 831085, which represents approximately 2,610 square kilometers of land and waters in and around the Newhaven Pastoral Station. The land the subject of the claim has been held under a perpetual pastoral lease. The determination area excludes the public road constructed between Newhaven Station Homestead and the Eastern Boundary of the determination area.
Native title is held by members of the Jipalpa-Winitjaru, Pikilyi, Yarripilangu-Karrinyarra, Watakinpirri and Winparrku landholding groups. To hold the communal native title rights, persons must be descendants of the abovementioned landholding groups or be accepted by senior members of that landholding group.
Non-exclusive native title rights and interests that exist over land and water in the determination area include:
- rights of access;
- rights to live on the land and to camp and erect shelters for that purpose;
- rights to hunt, gather and fish;
- rights to take and use natural resources (including animals, plants and fungi);
- rights to access, take and use natural water (including water from springs and rockholes, but not water captured by the lessee);
- rights to light fires for domestic purposes;
- rights to access and to maintain sites of significance;
- rights to conduct certain activities within the determination area (such as cultural activities, ceremonies, meetings, rituals regarding birth and death, and teaching about sites of significance)
- decision-making powers concerning the use and enjoyment of the land by those Aboriginal persons who are also governed by the traditional laws and customs acknowledged by the native title holders;
- rights to share or exchange natural resources, including traditional items made from those resources;
- rights to be accompanied on the determination area by persons who are required for the performance of ceremonies or cultural activities
- rights to be accompanied on the determination area by persons who have rights within the determination area pursuant to the native title holders’ traditional laws and customs
- rights to be accompanied on the determination area by persons required to assist in, observe, or record traditional activities on the areas.
These aforementioned rights do not confer exclusive rights of possession, use and enjoyment of the land or waters. They are rights that must be exercised in accordance with traditional law and custom.
The aforementioned rights are not to be exercised for a commercial or business purpose.
Native title does not exist in
- prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5 of the Atomic Energy Act 1953 (Cth));
- a homestead, house sheds and other buildings residing within the determination area
- an airstrip
- bores, turkey nests, squatters’ tanks, constructed dams and other constructed watering points
- stockyards and trapyards
- public works existing on the determination area (which include public roads and bores, gravel and fill pits, various water and sewer pipes, sewer pump stations and overhead power lines)
Non-native title rights and interests that exist within the determination area include:
- rights and interests of the Australian Wildlife Conservancy pursuant to Perpetual Pastoral Lease No. 1078;
- rights of Aboriginal inhabitants (irrespective of whether or not they hold native title) pursuant to a reservation in the pastoral lease. This reservation entitles prescribed Aboriginal inhabitants to a number of rights, including rights to enter and be on the land, rights to take and use water and rights to kill for food or ceremonial purposes;
- the rights of Aboriginal persons (irrespective of whether or not they hold native title) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). This Act establishes a procedure for the protection of sacred sites as well as conditional entry onto those sites;
- rights of access by employees and other agents of the Northern Territory or Commonwealth
- rights of access by employees and other agents of statutory authorities;
- interests of persons to whom valid and validated rights and interests have been:
- rights and interest granted pursuant to statute (including interests granted by the Crown).
The operation of this consent determination is conditional upon the nomination of a prescribed body corporate to perform the functions outlined in the Native Title Act 1993 (Cth). The prescribed body corporate will not hold native title on trust for the claimants. Native title is to be held by those members of the landholding groups identified above.
|Detailed Information: |
This is the first consent determination to be reached between native title holders and a non-government organization (the Australian Wildlife Conservancy).
Newhaven is one of the largest non-government conservation areas in the world. It is a safehaven for numerous threatened species, such as the Great Desert Skink. It has been acquired by the Australian Wildlife Conservancy for conservation purposes (having been transferred from Birds Australia, who originally acquired the pastoral lease). The Australian Wildlife Conservancy had worked with the native title holders on fire management and biological surveys for approximately five years prior to the determination.
The determination concerns an application (NTD 6028/00) that was filed on 20 December 2000, and later amended on 13 October 2010. The claim was filed by Sheila Napallarri Brown, Dolly Nampijinpa Daniels, James Japandgardi Marshall, Noel Japaljarri Spencer and Jilly Nakamarra Spencer.
Details of the judgment
The Court was satisfied that a free and informed agreement had been reached between the parties. The Court noted that the Northern Territory had relied on ‘historical ethnographic material and detailed fieldwork’ commissioned by the claimants. Additionally, affidavits and witness statements from claimants were provided. The Northern Territory also commissioned its own anthropological assessment of the material.
Anthropological evidence before the court suggested that the determination area is located in a region where peoples of the Ngaliya Warlpiri and the Luritja language communities would ‘come together, intermingle and intermarry’. Despite this, only a subset of those language groups - the Jipalpa-Winitjaru, the Pikilyi, the Yarripilangu-Karrinyarra, the Watakinpirri and the Winparrku landholding groups - were recognized as native title holders. These landholding groups were specifically connected, under laws and customs, to particular Dreaming tracks and clusters of Dreaming places within the determination area.