Napangardi on behalf of the members of Jiri/Kuyukurlangu, Kampu, Kunajarrayi, Mikanji, Pikilyi, Pirrpirrpakarnu, Wantungurry, Wapatali/Mawunji, Warlukurlangu, Yamaparnta, Yarripiri and Yarungkanyi/Murrku Estate Groups v Northern Territory of Australia [2013] FCA 637

West of Yuendumu

The determination area comprises twelve estate areas associated with the Jiri/Kuyukurlangu, Kumpu, Kunajarrayi, Mikanji, Pikilyi, Pirrpirrpakarnu, Wantungurru, Wapatali/Mawunji, Warlukurlangu, Yamaparnta, Yarrpiri and Yarungkanyi/Murrku landholding groups. The area is approximately 7,400 square kilometres of land situated approximately 350 kilometres north-west of Alice Springs. For a detailed description of the area and maps see Schedule A and Schedule B of the determination respectively, attached below under documents. The area is within the jurisdiction of the Central Desert Regional Council.

Registered with the National Native Title Tribunal on the Native Title Register 08/07/2013.

Between: 

Coral Gallagher Napangardi, Valerie Martin Napaljarri, Hamilton Morris Japaljarri and Others on behalf of the Jiri/Kurukurlangu, Kumpu, Kunajarrayi, Mikanji, Pikily, Pirrpirrpakarnu, Wantungurru, Wapatali/Mawunji, Warlukurlangu, Yamaparnta, Yarripiri and Yarungkanyi/Murrku Estate Groups (Applicant)

And

Northern Territory of Australia, Braitling Nominees Pty Ltd (Respondents)

Judge: Reeves J

Determination

Native title exists in parts of the determination area

It consists of non-exclusive native title rights and interests. The areas in which native title was found not to exist is outlined in Schedule C. 

Native title holders

The native title holders are Aboriginal persons who are members of one or more of the landholding groups listed above and are accepted as a member of one of the groups by senior members of one (or more) of the landholding groups [5].

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedule A and include:

• the right to access and travel over any part of the land and waters of the determination area; 
• the right to live on the land, and to camp, erect shelters and other structures on the land for that purpose; 
• the right to hunt, gather and fish on the land and waters; 
• the right to take and use the natural resources of the land and waters; 
• the right to access, take and use the natural water on or in the land, except water captured by the holders of the Perpetual Pastoral Lease 1035 (Mt Doreen); 
• the right to light fires for domestic purposes, but not for the clearance of vegetation; 
• the right to access, maintain and protect sites and places that are important under traditional laws and customs; 
• the right to partake in cultural activities, ceremonies, meetings, cultural practices and teaching about the cultural importance of particular places; 
• the right to speak for and make decisions about the use and enjoyment of land and waters by Aboriginal People who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders; 
• the right to share or exchange natural resources obtained from the determination area; and
• the right to be accompanied on the determination area by people who are not native title holders, but are required to be in the area by traditional law, or have rights in relation to land and waters according to traditional law, or are required by the native title holders to assist with traditional activities on the determination area. 

Other rights and interests in the determination area include:

• interests of the Mt Doreen pastoral lease holders; 
• rights of passage for travelling stock; 
• mining interests, being those under relevant exploration licences held by Energy Metals Ltd, Bluekebble Pty Ltd, Royal Resources Limited, Kurilpa Uranium Pty Ltd, Paradigm Mexico Pty Ltd, Hume Mining NL, Strike Resources Limited, Cauldron Energy Limited, ABM Resources NL, Aldershot Resources Ltd, Element 92 Pty Ltd, Tierra Rica Pty Ltd, Darwin Mining Exploration Pty Ltd, Enigma Mining Ltd; 
• rights and interests of Telstra Corporation Limited; 
• rights of Aboriginal persons in regards to the reservation in favour of Aboriginal people in pastoral leases in the Pastoral Land Act (NT); 
• rights arising under the registered Tanami Exploration, Central Land Council Indigenous Land Use Agreement DIA2001/001; 
• rights of Aboriginal persons under the Northern Territory Aboriginal Sacred Sites Act (NT);
• rights of access by an officer of the Northern Territory or Commonwealth as required to perform their legal duties; and
• the interests of persons to whom rights have been granted by the Crown by virtue of their Executive power of as allowed by statute.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

The Ngalyia Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under section 57(3) of the Native Title Act 1993 (Cth). 

Full text of the determination is available via the URL link above.

Background

In mid 2013, the parties filed for a consent determination to be approved by the Court under s 87 of the Native Title Act 1993 (Cth) [1]. This determination was to be made in regards to an area over which a perpetual pastoral lease has existed since 1990 (PPL 1035) [1].  A previous claim existed over the Mount Doreen area, however only in relation to a specific area of a pastoral lease affected by a noticed for an exploration licence. This was filed in 2005, however this was discontinued in 2011 and three days later the application for the current determination was filed, which claimed a larger area of land [2],[3],[15].

Details of Judgment

In recognising the longevity of the Ngalyua Warlpiri connection to Country, Justice Reeves stated that "as part of the Ngaliya Walpiri society, the claimants believe their spiritual ancestors fashioned that land a long time ago, during what is termed the 'Jukurrpa' in Walpiri of the 'Dreaming' or 'Dreamtime' in English" [1]. As such, "native title has existed in this land, according to the traditional laws and customs of the Ngalyia Walpiri society, long before it was given the name Mount Doreen. It follows that the orders that will now be made do not create native title in the claim area. Instead, by this consent determination, the Australian legal system recognises that long held and pre-existing native title" [25]. 

Related Entries

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