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Ellaga v Northern Territory of Australia [2012] FCA 670
Binomial Name:	Federal Court of Australia
Sub Category:	Consent Determination (Native Title Act)
Place:	Central Northern Territory within the Roper Gulf Shire
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State/Country:	Northern Territory , Australia
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	Central Northern Territory within the Roper Gulf Shire
Legal Status:	Registered on the National Native Title Register.
Legal Reference:	Tribunal file no.: DC10/20 Federal Court no.: NTD24/2010
Alternative Names:	Kalala Pastoral Lease
Subject Matter:	Native Title \| Pastoral Activities \| Recognition of Native Title or Traditional Ownership
URL:	http://www.austlii.edu.au/au/cases/cth/FCA/2012/670.html
Summary Information:
Between: Barney Ellaga (on behalf of the Badpa group, the Murrumggum Kunakingka group and the Guyal Bardi Bardi group) (APPLICANTS) AND Northern Territory of Australia and Raymond Willian Murphey and Palema Grace Murphy and Telstra Corporation Ltd (RESPONDENTS) Judge: Lander J Where made: Historic Newcastle Waters Township Determination: Native title exists in parts of the determination area. It consists of non-exclusive native title rights. This does not confer on the estate group members possession, occupation, use and enjoyment of the Determination Area, to the exclusion of all others. Native title is held jointly by members of the following estate groups: (a) the Badpa group; (b) the Murrunggun Kunakingka group; (c) the Guyal Bardi Bardi group. Membership of the estate groups is determined by patrilineal descent, or a person's mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent or if a person has been adopted and incorporated into such a descent relationship. Other people have rights and interests in the Determination Area in accordance with traditional laws and customs, subject to the rights and interests of the estate group members. These people are: (a) members of estate groups from neighbouring estates; (b) spouses of the estate group members. Non-exclusive native title rights and interests that exist over the native title area in the Determination Area include: - the right of access and to travel over the native title area; - the right to hunt and to fish; - the right to gather and use the natural resources of the area such as food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and use the natural water of the area; - the right to live, and to camp on the land, and to erect shelters and other structures; - the right to light fires for domestic purposes; - the right to conduct and participate in cultural activities, cultural practices relating to birth and death including burial rites, ceremonies, meetings and teaching the physical and spiritual attributes of sites and places in the native title area; - the right to maintain and protect significant cultural sites and places; - the right to share or exchange subsistence and other traditional resources obtained on or from the native title area; - the right to be accompanied onto the Determination Area by people who, though not native title holders are people required by traditional law and customs for the performance of ceremonies or cultural activities or people who have rights under traditional law and custom in relation to any part of the native title area or people required to assist, observe or record traditional activities on the area. Interests of the members of neighbouring estate groups and spouses of the native title holders include: - the right of access and to travel over the native title area; - the right to hunt and to fish; - the right to gather and use the natural resources of the area such as food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and use the natural water of the area; - the right to camp on the land; - the right to light fires for domestic purposes; - the right to conduct activities necessary to give effect to the rights referred to above. Non-native title rights and interests that exist within the determination area can be summarised as: - the interests of Raymond William Murphy and Pamela Grace Murphy under Perpetual Pastoral Lease 1064 over NT portion 697; - in relation to NT portion 2372, the interests of the Northern Territory Land Corporation under Crown Lease Perpetual 618; - in relation to NT portions 4269 and part of NT portions 4271 and 5144 valid rights of usage for the passage of travelling stock; - in relation to NT portion 5146 and 4270, valid rights of use for commonage purposes; - the interests of the Northern Territory Government as owner of the McArthur River Gas Pipeline and all associated infrastructure; - the rights and interests of NT Gas Pty Ltd as the holder of Pipeline Licence No. 17 under the Energy Pipelines Act (NT); - the rights and interests of the Northern Territory pursuant to Energy Supply Easement instrument No. 193465, the rights and interests of APT Pipelines (NT) Pty Ltd as the beneficiary of the rights and interests granted to the Northern Territory of Australia pursuant to Energy Supply Easement instrument No. 193465 and the rights and interests of APT Pipelines (NT) Pty Limited as the holder of Pipeline Licence No. 4 granted under the Energy Pipelines Act (NT) in relation to NT Portion 697; - the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and 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) including the rights to inspect land, install and operate telecommunications facilities and alter, remove, maintain, replace and ensure the proper functioning of its telecommunications facilities, for employees, agents or contractors to access telecommunications facilities in the native title area and under any license, access agreement or easement relating to its telecommunications facilities in the Determination Area; - the rights of Aboriginal persons in relation to NT portion 697, 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); - rights of Aboriginal persons under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); - rights of access by an employee, servant or agent of the Northern Territory or Commonwealth government as required in the performance of their legal duties; - the interests of persons to whom rights and interests have been granted by the crown pursuant to statute or otherwise in exercise of executive power; - interests granted under the Mining Act(NT) including Exploration Licence Titles Numbers 25838, 27877, 27878, 27879 and Explorations Permit Title Number 117. Provisions Relevant to the Native Title Rights Native title does not exist over - minerals, petroleum or prescribed substances as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or the Atomic Energy Act 1953(Cth). An Aboriginal corporation, whose name is to be provided within 12 months, is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
Detailed Information:
Background This application was filed on 13 August 2010 seeking recognition of native title rights and interests over the land and waters within the bounds of the Kalala Pastoral Lease in the Northern Territory. Raymond Willian Murphey and Palema Grace Murphy are the holders of the pastoral lease. The application is brought on behalf of the members of land holding groups associated with three estate groups: the Badpa group; the Murrumggum Kunakingka group and the Guyal Bardi Bardi group. This application was also heard with eleven other applications due to their geographical proximity. At a ceremonial sitting of the Federal Court, Justice Lander awarded non-exclusive native title rights over the stations of Amungee Mungee, Mungabroom, Vermelha, Maryfield, Forrest Hill, Kalala, Hayfield, Shenandoah, Ucharonidge and Beetaloo stations, as well as the township of Daly Waters (Rawlinson, 2012). This is an area of almost 30,000 km� (Northern Land Council, 2012). Native title applicant Raymond Pompey said that the determination meant that he "got to go back and look after my site, sacred site - the trees and the dreamings from my father left there" (Rawlinson, 2012). Northern Land Council CEO Kim Hill said the non-exclusive native title rights mean traditional owners like Pompey will be involved in future use of the land, and will have input into the development of new infrastructure or mining projects (Northern Land Council, 2012). Details of Judgement The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed in the Federal Court on the 20th June 2012 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.