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Wavehill v Northern Territory of Australia [2011] FCA 584
Binomial Name:	Federal Court of Australia
Date:	2 June 2011
Sub Category:	Consent Determination (Native Title Act)
Place:	Birrimba Pastoral Lease (Perpetual Pastoral Lease 935)
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State/Country:	Northern Territory, Australia
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	Birrimba Pastoral Lease is an area of approximately 2595 km2 in the north west area of the Northern Territory, about 600 km south of Darwin. The Birrimba Pastoral Lease is to the west of Newcastle Waters Station, and to the east of the Gregory National Park.
Legal Status:	Registered on the National Native Title Register of native title determinations.
Legal Reference:	Federal Court No: NTD15/2010; National Native Title Tribunal No: DCD2011/012.
Alternative Names:	Birrimba Pastoral Lease
Subject Matter:	Access \| Agriculture \| Land Use \| Native Title \| Native Title - Extinguishment \| Pastoral Activities \| Recognition of Native Title or Traditional Ownership \| Recognition of Traditional Rights and Interests
URL:	http://www.austlii.edu.au/au/cases/cth/FCA/2011/584.html
Summary Information:
Between: Jimmy Wavehill on Behalf of the Ngapurrpinkakujarra Group, the Yingawunari Group, the Narlwan Group, the Luwaja Group, the Tururrutpa Group, the Beregumayin-Ngarrajanaggu Group (APPLICANTS) and Northern Territory of Australia, Wallco Pastoral Company Pty and Telstra Corporation Ltd (RESPONDENTS) 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. Native title is held by the Ngapurrpinkakujarra group, the Yingawunarri group, the Narlwan group, the Luwaja group, the Tururrutpa group and the Beregumayin-Ngarrajananggu group. Non-exclusive native title rights and interests that exist over land in the determination area (specifically the areas identified in Schedule 3) include: - the right of access; - the right to hunt to fish; - the right to gather and use natural resources such as food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and use natural waters; - the right to live, to camp and erect shelters on those areas; - the right to light fires for domestic purposes, but not for vegetation clearing; - the right to conduct and to participate in:(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; - the right to look after significant cultural sites and places; - the right to share or exchange subsistence and other traditional resources from the native title area; and - the right to take a non-native holders onto the area when the non-native title holder is required for the performance of ceremonies or cultural activities on the areas or has rights in relation to the areas according to the traditional laws and customs acknowledged by the native title holders or is required by the native title holders to assist, watch or record traditional activities. These rights do not confer exclusive rights of possession, use and enjoyment of the area. Nor do they confer a right to control access to the determination area or allow for commercial use of the determination area. Non-exclusive native title rights held by related parties: Members of neighbouring estate groups and spouses of the applicant estate groups (referred to in Schedule C and clause 6 of the NNTT extract) also have the following non-exclusive native title rights in relation to the area: - the right of access; - fishing and hunting rights; - gathering rights including the right to gather and use food, medicinal plants, wild tobacco, timber, stone and resin from the area; - right to take and use the natural water of the area; - the right to camp; and - the right to light fires on those areas for domestic purposes. These native title rights and interests do not confer on the native title holders, exclusive possession, occupation, use and enjoyment of the determination area to the exclusion of all others. All native title rights are subject to and exercisable in accordance with the valid laws of the Northern Territory and the Commonwealth of Australia. Non-native title rights and interests that exist within the determination area: - in relation to NT portion 2666, the interests of Wallco Pastoral Company Pty Ltd under Perpetual Pastoral Lease 935; - in relation to NT portion 2666, the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in the pastoral lease, identified in ss 38(2)-(6) of the Pastoral Land Act 1992 (NT); - the rights and interests of Telstra Corporation Limited as the owner and operator of telecommunications facilities within the determination area 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); - the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); - the rights and interests of an employee, servant, agent or instrumentality, of the Northern Territory or Commonwealth or other statutory authority required in the performance of statutory duties; - interests of persons whom valid and validated rights and interests have been granted by the Crown pursuant to statute or otherwise in the exercise of executive power or statute; - interests granted under the Mining Act (NT) (see Schedule E); - there are no native title rights in minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT)); - there are no native title rights in petroleum (as defined in s 5 of the Petroleum Act (NT)); and - there are no native title rights in 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)). Extinguishment Extinguishment of native title occurred over part of the Determination Area where any public works were built, established or placed in the area prior to 23 December 1996. This includes such works as homesteads, sewer systems, bores and public access roads. In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title. The Top End (Default PBC/CLA) Aboriginal Corporation RNTBC as the prescribed agent body corporate, is to perform functions required under the Native title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held on trust for the native title holders.
Detailed Information:
Background The determination concerns a native title application that was lodged on 29 July 2010 over the land and waters within the bounds of the Birrimba Pastoral Lease (Perpetual Pastoral Lease 935). The native title area covered by the application is approximately 2595 km2. The application was not accepted for registration pursuant to s 109 of the Native Title Act 1993(Cth). This judgement is one of six consent determinations made at the same hearing, over land and waters within the bounds of several pastoral leases in the north western area of the Northern Territory. The total area covered by the applications was in excess of 15,730 km2. The applications were heard together due to their geographical proximity. They were all west of Newcastle Waters Station and east of Gregory National Park. There has been a determination of native title over Newcastle Waters Station see King v Northern Territory [2011] FCA 582. The other applications heard together with this application were in relation to: - Camfield Pastoral Lease (Campbell on behalf of the Ngapurrpinkakujarra, Narrwan, Walanypirri, Yingawunarrri, Purruruka, Yilyilyimarri, Japuwuny-Wijina, Bilnara, and Wampana Groups); - Montejinni East Pastoral Lease (King on behalf of the Ngapurrpinkakujarra, Yingawunarri, and Purrurruka Groups); - Montejinni West Pastoral Lease (Young on behalf of the Nirrina, Yingawunarri, Purrurruka, Yilyilimarri, and Billinara Groups); - Dungowan Pastoral Lease(Wavehill on behalf of the Ngapurrpinkakujarra Group, the Narrwan Group, the Walanyipirri Group, the Yingawunarri Group, the Narlwan Group); - Killarney Pastoral Lease (Young on behalf of the Ngapurrpinkakujarra, Yingwunarri, Liwi, Luwaja, Nirrina, and Beregumayin-Ngarrajanaggu Groups). In each case, the judge made orders in the terms agreed to by the parties and noted that under s87 of the Native Title Act 1993 (Cth) the agreement must be in writing. Barrister Raelene Webb stated that to have the six determinations decided concurrently was a large step forward and would allow for consent determinations to be achieved more easily. (McNally, 2011). With approximately 100 claims yet to be settled in the Northern Territory, this sets an important precedent. Mansfield J stated that the Aboriginal people of the area had always been the true native title holders, however in upholding their native title claims, Australia formally recognised the groups as the traditional owners of the land (Statham). 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 Ngapurrpinkakujarra, Yingawunari, Narlwan, Luwaja, Tururrutpa, Beregumayin-Ngarrajanaggu Groups in relation to the part of the land and waters covered by the Birrimba Pastoral Lease Application. The signed agreement 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.