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Young v Northern Territory of Australia [2011] FCA 585
Date:	2 June 2011
Sub Category:	Consent Determination (Native Title Act)
Place:	Killarney Pastoral Lease
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State/Country:	Northern Territory, Australia
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	The determination area is contained in Schedule B of the Federal Court consent determination. It is comprised of: (1) NT Portion 1363 (being land held by Wallco Pastoral Company Pty Ltd under Perpetual Pastoral Lease 1143); (2) Lot 28 in the Town of Top Springs; (3) NT Portions 4103, 3528 and 3529; (4) NT Portion 5143, part of the Dry River and Weaner Springs to Top Springs Stock Route; and (5) NT Portion 5142, part of the Auvergne Stock Route - Weaner Crossing/Top Springs.
Legal Status:	Registered on the National Native Title Register (of native title determinations).
Legal Reference:	Federal Court No: NTD 16 of 2010; National Native Title Tribunal No: DC10/12.
Subject Matter:	Fishing \| Land Use \| Native Title \| Native Title - Extinguishment
URL:	http://www.austlii.edu.au/au/cases/cth/FCA/2011/585.html
Summary Information:
Between: Alan Young on behalf of the Ngapurrpinkakujarra Group, the Yingwunarri Group, the Liwi Group, the Luwaja Group, the Nirrina Group, the Beregumayin-Ngarrajanaggu Group (APPLICANTS) and Northern Territory of Australia (FIRST RESPONDENT) Wallco Pastoral Company Pty Ltd (SECOND RESPONDENT) Judge: Mansfield J Where made: Pigeon Hole Determination: Native title exists in parts of the determination area. It consists of non-exclusive native title rights and interests. Native title is held by members of the Ngapurrpinkakujarra group, the Yingawunarri group, the Liwi group, the Luwaja group, the Nirrina group and the Beregumayin-Ngarrajananggu group ('the estate groups'). Non-Exclusive Native Title Rights Non-exclusive native title rights and interests that exist over parts of the determination area include: - the right to travel over, move about on and have access to the land; - the right to hunt, fish, gather and use the resources of the land including food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and use natural water from the land (this does not include water captured by the holders of Perpetual Pastoral Lease 1143); - the right to live and camp on the land and erect structures for these purposes; - the right to light fires for domestic purposes; and - the right to engage in activities on the land, including (i) cultural activities; (ii) practices relating to birth and death; (iii) ceremonies and meetings; and (iv) teaching the physical and spiritual attributes of sites and places of significance; - the right to maintain and to protect sites and places of significance; - the right to exchange subsistence and other traditional resources obtained on or from those areas; - the right to be accompanied on to the land by specified persons; and - the right to conduct activities necessary to give effect to any of the abovementioned rights. These rights are held by the aforementioned estate groups. Additionaly, members of neighbouring estate groups and spouses of the estate groups hold the following non-exclusive native title rights: - the right to travel over, move about on and have access to the land; - the right to hunt, fish, gather and use the resources of the land including food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and use natural water from the land (this does not include water captured by the holders of Perpetual Pastoral Lease 1143); - the right to live and camp on the land and erect structures for these purposes; - the right to light fires for domestic purposes; and - the right to conduct activities necessary to give effect to any of the abovementioned rights. These rights are for the personal or communal needs of the native title holders and not for any commercial or business use. Areas and Subject Matter Where Native Title Does Not Exist Native title does not exist over minerals, petroleum, or prescribed substances under the Atomic Energy Act 1953 (Cth). Non-Native Title Rights and Interests that Exist Within the Determination Area These can be summarised as: - the interests of Wallco Pastoral Company Pty Ltd under Perpetual Pastoral Lease 1143 in relation to NT portion 1363; - a freehold estate over Lot 28 in the town of Top Springs; - the rights of Aboriginal persons (whether or not they are native title holders) under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); - the rights and interests of Telstra Corporation Limited (including rights in respect of its freehold estates in NT Portions 4103, 3528 and 3529); - the rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or any other statutory authority; - the interests of persons to whom rights and interests have been granted by the Crown or conferred by statute. Where native title rights and interests in the determination area conflict with the exercise of the non-native title rights and interests outlined above, the non-native title rights will prevail over, but will not extinguish, the non-exclusive rights of the native title holders. Extinguishment Native title has been extinguished in parts of the determination area. The complete list of areas where native title has been extinguished is contained in Schedule D. These can be summarised as follows: - NT portions 4103, 3528 and 3529 (being land held by Telstra Corporation); - Lot 28 in the town of Top Springs; - areas over which public works are situated (where those public works were constructed prior to 23 December 1996); - those parts of NT portion 1363 that are covered by pastoral improvements. The orders of the Court specify that the parties may apply to the Court to establish the precise location of certain public works and other improvements within the determination area, in relation to extinguishment issues (AIATSIS 2011: 2-3).
Detailed Information:
Background This determination concerns a native title application titled Killarney Pastoral Lease, which was filed with the Federal Court of Australia on 30 July 2010 as proceeding NTD16/10. The application area comprised 2976.18 square kilometres of land in the central Northern Territory. The applicant is not a registered native title claimant because their application for registration has not been accepted by the National Native Title Tribunal. This decision is one of six consent determinations made at the same hearing by Mansfield J on 2 June 2011. All of the consent determinations have recognised native title over pastoral leases in the Northern Territory. The pastoral leases that are the subject of these consent determinations are the Killarney, Birrimba, Montejinni West, Montejinni East, Dungowan and Camfield pastoral leases. These pastoral leases are all located in the north-western region of the Northern Territory. They are all situated west of the Newcastle Waters Station and east of the Gregory National Park. Together, they encompass approximately 15,730 square kilometres of land. In light of these consent determinations, Ms Raelene Webb (counsel for the applicants) commented that the law of native was now relatively settled. She suggested that consent determinations over pastoral leases could now be readily achieved (McNally 2011). Details of the Judgment Mansfield J was satisfied that it was appropriate and within the Court's power to make this consent determination. Mansfield J noted that he was not required to examine whether the agreement was grounded on a factual basis that would satisfy the Court at a hearing. Instead, the Court only needed to determine whether the agreement entered into between the parties was made freely and on an informed basis. This was important in the present case because the applicant had been refused registration as a native title claimant on the basis that, inter alia, he could not make out a factual basis for his native title claim. Mansfield J held that the native title was not to be held on trust. Instead, the consent determination provides for an Aboriginal corporation to be nominated to the Court within 12 months. This Aboriginal Corporation will be the prescribed body corporate for the purposes of s 57 of the Native Title Act 1993 (Cth), and will perform the functions specified in the Act.