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Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCA 135 (29 July 2005)
Category:	Case Law
Binomial Name:	Federal Court of Australia
Sub Category:	Litigated Determination
Place:
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State/Country:	Northern Territory, Australia
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	Davenport Range, Northern Territory of Australia.
Legal Reference:	Federal Court File No: NTD6002/98; National Native
Alternative Names:	Davenport/Murchison
Subject Matter:	Native Title
URL:	http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/135.html
Summary Information:
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCA 135 Between: Northern Territory of Australia (APPLICANTS) and the Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (1st RESPONDENTS) and Conservation Land Corporation (2nd RESPONDENTS). Judge: Wilcox, Weinberg and French JJ Where Made: Perth (heard in Darwin)
Detailed Information:
This decision relates to the appeal by the Northern Territory and cross appeal by the Native Title claim group to Mansfield's J decision in The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539; [2004] FCA 472. The Northern Territory appealed Mansfield's J decision on 55 grounds. These were substantially rejected in this decision by Wilcox, French and Weinberg JJ, and the appeal dismissed. However, in response to the Northern Territory government's arguments, the Court did delete and vary some parts of Mansfield's J decision. Some changes were agreed between the parties, and others were made by order of the Court. In response to the Territory's arguments, the Court: - Upheld Mansfield's J treatment of the Native Title holders as a community rather than separate clan estates forming separate Native Title claim groups; - Upheld Mansfield's J finding that the requisite 'connection' to land and waters could be held by those whose membership of the community of native title holders is based on adoption or birthplace affiliation; - Concurred with Mansfield J that spousal affiliation with a Native Title holder could result in membership of the Native Title holding group; - Varied the opening par of par 3 of Mansfield's J determination to substitute the words 'the right to conduct activities incidental to them' with the words 'the right to conduct activities necessary to give effect to them', for the purposes of clarity; - Affirmed that the right to live permanently on the land is not inconsistent with a pastoral leasholder's rights; - Found that the right to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters is a right in relation to land and waters as required by the NTA, and varied the wording of Mansfield's J determination to clarify this; - Accepted the Territory's challenge to Mansfield's J finding of a Native Title right to trade in natural resources; - Rejected the Territory's argument that Mansfield's J recognition of a right to protect sites of importance implied a right to control access; - Allowed the Territory's appeal regarding the right to control access to land and waters; - Deleted from Mansfield's J determination reference to the right to control disclosure of spiritual beliefs and practices because either it was not expressed a right in relation to land and waters or, if it was, then it conferred a right to control access to land and waters which was found not to exist; - Deleted reference to the right to determine membership of the landholding group from the determination as it was found to be an internal matter of traditional law and custom; - Rejected the Territory's argument that s47B of the NTA did not apply to the Hatches Creek township area; - Rejected the Territory's arguments that a grant of land to the Conservation Land Corporation extinguished Native Title rights in that area. The Northern Territory Government sought special leave to appeal the decision of the Full Federal Court in the High Court of Australia, specifically on the point of the right to live permanently on the land. Special Leave was refused.