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Durrayjaba v Northern Territory of Australia [2015] FCA 1242 | ||
| Date: | 24 November 2015 | |
| Sub Category: | Consent Determination (Native Title Act) | |
| Place: | Located in the local government area of Roper Gulf Shire | |
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| State/Country: | Northern Territory, Australia | |
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| The determination area is outlined in Schedule A of the judgment. The Determination Area is bounded by the Queensland-Northern Territory border and the coast of the Gulf of Carpentaria running from the border west or north-west towards Borroloola. The Spring Creek Pastoral Lease No. 687, and so the Determination Area, is an area of some 2,344 square kilometres. | ||
| Legal Status: | Registered on the National Native Title Register. | |
| Legal Reference: | Tribunal file no.: DCD2015/001; Federal Court file no.: NTD33/2013. | |
| Alternative Names: | ||
| Subject Matter: | Native Title | |
| URL: | http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/1242.html?stem=0&synonyms=0&query=title%28%222015%20FCA%201242%22%29 | |
| Summary Information: | ||
| Durrayjaba v Northern Territory of Australia [2015] FCA 1242 Between: NELSON HOGAN DURRAYJABA, KATHLEEN GER, ASMAN RORY, JACK GREEN, LEO WALDEN, CASEY DAVEY, PHILLIP RILEY, ROBERT HOGAN AND PEGGY MAWSON ON BEHALF OF THE JININGINA (WUYALIYA), GARAMBARINI (WURDALIYA), WEARYAN (MAMBALIYA), MAMBU (MAMBALIYA), MIMBIRI (MAMBALIYA) AND FLETCHER CREEK (WUYALIYA) ESTATE GROUPS (applicants); and NORTHERN TERRITORY OF AUSTRALIA, RIPPLE RESOURCES PTY LTD, ARMOUR ENERGY LIMITED AND JAMES MAWSON, DULCIE MAWSON, IAN MAWSON, LINDA MAWSON, DAPHNE MAWSON, KATHLEEN MAWSON, JOCELYN MAWSON, CLIVE MAWSON AND CINDY MAWSON (respondents). Judge: Mansfield J Where made: Borroloola Determination: Native title exists in parts of the determination area. It consists of exclusive native title rights in relation to land and non-exclusive native title rights in relation to waters. Native title is held by the following estate groups: - Jiningina (Wuyaliya) Estate Group - Garambarini (Wurdaliya) Estate Group - Wearyan (Mambaliya) Estate Group - Mambu (Mambaliya) Estate Group - Mimbiri (Mambaliya) Estate Group - Fletcher Creek (Wuyaliya) Estate Group. Native title rights in respect of the Determination Area consist of the following rights: - except in relation to flowing and subterranean waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; - in relation to flowing and subterranean waters, the right to use those waters including the right to: (i) hunt on, gather, and fish from; and (ii) take and use; the flowing and subterranean waters in accordance with their traditional laws and customs for personal and communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose. Rights of the estate groups - the right to travel over, to move about and to have access to those areas; - the right to hunt and to fish on the land and waters of those areas; - the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Perpetual Pastoral Lease No. 1113; - the right to live, to camp and for that purpose to erect shelters and other structures on those areas; - the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; - 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; - the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs; - the right to share or exchange subsistence and other traditional resources obtained on or from those areas; - 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; - the right to conduct activities necessary to give effect to the rights referred to above. Rights of other Aboriginal people In accordance with traditional laws and customs, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being: (a) members of estate groups from neighbouring estates; (b) spouses of the estate group members. The individuals referred to in paras (a) and (b) above have the following rights and interests: - the right to travel over, to move about and to have access to those areas; - the right to hunt and to fish on the land and waters of those areas; - the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; - the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Pastoral Lease No. 1113; - the right to camp on those areas; - the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; - the right to conduct activities necessary to give effect to the rights referred to above The native title rights and interests are subject to and exercisable in accordance with: - the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose; - the laws of the Northern Territory of Australia and the Commonwealth of Australia. There are no native title rights in or 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)); - 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)), in the Determination Area. Non-native title rights and interests that exist within the determination area: 1. in relation to NT Portion 814, the interests of James Mawson, Dulcie Mawson, Ian Mawson, Linda Mawson, Daphne Mawson, Kathleen Mawson, Jocelyn Mawson, Clive Mawson and Cindy Mawson as holders of Pastoral Lease No. 687; 2. the rights and interests of Telstra Corporation Limited: (a) as the owner or operator of telecommunications facilities within the Determination Area; (b) 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 rights: (i) to inspect land; (ii) to install and operate telecommunications facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties; (d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area; 3. 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 687 and in ss 38(2) - (6) of the Pastoral Land Act (NT); 4. the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act (NT); 5. rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties; 6. rights and interests held by reason of the force and operation of the Water Act (NT); 7. existing rights of the public for access and enjoyment pursuant to s 13 Validation (Native Title) Act (NT) in relation to: (a) waterways; (b) beds and banks of foreshores or waterways; (c) coastal waters; (d) beaches; (e) areas that were public places at the end of 31 December 1993; 8. the interests of persons to whom valid and validated rights and interests have been: (a) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or (b) otherwise conferred by statute; 9. the following interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT), depicted in Schedule E: (a) Exploration Licence Title No. 26539 granted on 1 August 2008; (b) Exploration Permit Title No. 176 granted on 29 June 2011; (c) Exploration Permit Title No. 174 granted on 11 December 2012; (d) Exploration Permit Title No. 190 granted on 11 December 2012. (e) Exploration Licence Title No. 29837 granted on 27 August 2013; (f) Exploration Licence Title No. 29952 granted on 21 November 2013; (g) Exploration Licence Title No. 29953 granted on 14 February 2014; (h) Exploration Licence Title No. 30079 granted on 9 May 2014; (i) Exploration Licence Title No. 24082 granted on 17 October 2015; 10. the rights and interests of the parties under the following agreements: (a) Co-existence and Exploration Deed for Exploration Permit Title No. 171 and Exploration Permit Title No. 176 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 22 June 2011; (b) Co-existence and Exploration Deed for Exploration Permit Title No. 174 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012; (c) Co-existence and Exploration Deed for Exploration Permit Title No. 190 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012. The relationship between the native title rights and interests and the non-native title rights and interests is that: - the enjoyment and exercise of the exclusive native title rights and interests are partly inconsistent with Pastoral Lease No. 687 such that the exclusive native title rights and interests described continue to exist in their entirety but have no effect in relation to Pastoral Lease No. 687; - if Pastoral Lease No. 687 or its effects are wholly removed or otherwise wholly cease to operate over any part of NT Portion 814, the exclusive native title rights described again have full effect to that extent; - to the extent, if at all, that the exercise of the native title rights and interests referred conflicts with the exercise of the non-native title rights and interests, the non-native title rights and interests prevail over, but do not extinguish, the native title rights and interests. Provisions relevant to the Native Title rights: - the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate; - native title is not to be held in trust for the native title holders. | ||
| Detailed Information: | ||
| Background The native title application was first made on 20 December 2013, seeking recognition of native title rights and interests over the land and waters within the bounds of the Spring Creek Pastoral Lease (Pastoral Lease No. 687). The application was amended by consent on 28 October 2015. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the estate groups as the holders of native title rights and interests over their country. There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the claim. Various parts of the Spring Creek Pastoral Lease were the subject of a number of former native title determination applications including NTD 6020 of 2000 (Spring Creek No. 1), NTD 6051 of 2001 (Spring Creek No. 4), NTD 6052 of 2001 (Spring Creek No. 3) and NTD 5 of 2009 (Borroloola Region #2 (Coastal)). Those applications have since been amended or withdrawn so as to remove any claims which overlap the Determination Area. It is one of a number of applications proposed to be heard together, because they are geographically proximate. The successful native title claim has provided the claimants with formal recognition of approximately 2,344 square kilometres of land. 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 claimants in relation to part of the land and waters covered by the claim. A signed document 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. | ||
Durrayjaba v Northern Territory of Australia [2015] FCA 1242 - Consent Determination Extract - (
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