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Brown v Northern Territory of Australia [2013] FCA 1083
Date:	29 October 2013
Sub Category:	Consent Determination (Native Title Act)
Place:	Located in the vicinity of Dry River
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State/Country:	Northern Territory, Australia
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	The Determination Area is comprised of NT portions 2978 and 3989, being land the subject of Perpetual Pastoral Lease No. 1186. The Determination Area is in the vicinity of Dry River, south of Katherine in the Northern Territory. Native title does not exist in some parts of the Determination Area. For a full list of these parts, see the attached Extract.
Legal Status:	Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference:	Tribunal file no.: DCD2013/016 Federal Court no.: NTD43/2011
Subject Matter:	\| Native Title \| Recognition of Native Title or Traditional Ownership \| Recognition of Traditional Rights and Interests
URL:	http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/NNTR_details.aspx?NNTT_Fileno=DCD2013/016
Summary Information:
Between: JESSIE BROWN (ON BEHALF OF THE BEREGUMAYIN GROUP AND THE JALALABAYN GROUP) (APPLICANT); NORTHERN TERRITORY OF AUSTRALIA (FIRST RESPONDENT); and NICHOLAS JOHN KOSTOWSKI (SECOND RESPONDENT). Judge: Mansfield J Where made: Mataranka Determination: Native title exists in parts of the determination area. It consists non-exclusive native title rights in relation to land and waters. Native title is held by The land and waters within the Determination Area comprise whole or part of two (2) estates which are held by the members of: (a) the Beregumayin - Ngarrajanangu estate group; (b) the Jalalabayn Group. The estate group includes people who are members of that group by reason of: (a) "patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof." In addition and subject to the rights and interests of the estate group, other Aboriginal people are conferred rights and interests over the Determination Area. These other Aboriginal people are defined as: (a) "members of estate groups from neighbouring estates; (b) spouses of the estate group members." The definition of 'other Aboriginal people' extends out to include those people who are members of such a group by reason of: (a) "patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof." No native title rights and interests exist in the Determination Area in relation to: - minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT)); - petroleum (as defined in s 5 of the Petroleum Act (NT)); and - 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)). Native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory and Commonwealth governments. In addition, native title rights and interests are classified as being for "the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose." Non-exclusive native title rights of the members of the estate group include: (a) "the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas, except water captured by the holders of Perpetual Pastoral Lease No. 1196; (e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct and to participate in the following activities on those areas: (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 that are of significance under their traditional laws and customs; (h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs; (i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas; (j) the right to be accompanied on to those areas by persons who, though not native title holders, are: (i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas; (ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; (iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas; (k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof." These non-exclusive native title rights and interests do not confer on the members of the estate group possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. With respect to the native title rights and interests of 'other Aboriginal people' (as defined above), their non-exclusive rights to use and enjoy parts of the Determination Area include: (a) "the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas, except water captured by the holders of Perpetual Pastoral Lease No. 1196; (e) the right to camp on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof." These non-exclusive native title rights and interests do not confer on 'other Aboriginal people', possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. Other Interests A number of 'other interests' are identified in the Extract. These other interests are created by the Crown or otherwise and include: (a) the pastoral interests of Lindsay Wray Miller; (b) the rights and interests of Telstra Corporation Ltd; (c) the rights of Aboriginal persons (whether or not native title holders) under a reservation within the pastoral lease area; (d) the rights of Aboriginal persons arising under the Aboriginal Sacred Sites Act 1989 (NT); (e) rights of access by employees, servants, agents or instrumentalities of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties; (f) the interests of person who have otherwise obtained valid rights and interests by Crown grant or statutory authority; (g) a number of interests granted under the Petroleum Act (NT), namely Exploration Permit Title No. 167 granted on 10 January 2013. Conflict of exercise of rights and interests Where a conflict arises between the exercise of non-exclusive native title rights and interests and othernative title rights and interests, the rights and interests defined as other will prevail. This does not mean that holders of the other interests extinguish the native title rights and interests held by those persons identified as holders of non-exclusive native title rights and interests. Determination The native title determination will take effect subject to the orders of the Federal Court and the operation of the Native Title Act, with native title held in trust for the native title holders set out in the Determination. Aboriginal Corporation An Aboriginal Corporation, whose name is to be provided within 12 months will be the prescribed body corporate and perform the appropriate functions as outlined in s57(3) of the Native Title Act. Liberty to Apply The parties to the Consent Determination have liberty to apply for the following purposes: 1. to precisely establish the location and boundaries of public works and adjacent land and waters; 2. to precisely establish the location and boundaries of land on which the pastoral improvements have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements; and 3. to establish whether any of the pastoral improvements have been constructed unlawfully. Determination Area The Determination Area is comprised of NT portions 2978 and 3989, being land the subject of Perpetual Pastoral Lease No. 1186, except those parts classified as being without native title rights and interests. Areas where native title does not exist Native title rights and interests have been wholly extinguished in a number of areas. These areas include parts of the Determination Area which are covered by public works that were constructed, established or situated prior to 23 December 1996, or commenced to be constructed or established before that date. The Extract provides a non-exhaustive list of such public works that includes reference to: - public roads; - Government bores; and - electricity transmission lines. For the full list, see the attached Extract at Schedule D. Background to the Determination On 14 October 2011, JESSIE BROWN (ON BEHALF OF THE BEREGUMAYIN GROUP AND THE JALALABAYN GROUP) (the Applicant) made a native title determination application over the lands and waters within the boundaries of the Nenen Pastoral Lease (Perpetual Pastoral Lease No. 1186.) The Applicant and the First and Second Respondents, the NORTHERN TERRITORY OF AUSTRALIA and LINDSAY WRAY MILLER, reached an agreement and proposed a determination of native title in relation to the land and waters covered by the application. The terms of that agreement were endorsed by the Federal Court of Australia in this decision.
Outcomes:
Native title exists in parts of the Determination Area.