Wikilyiri on behalf of the persons who are ngurraritja for Ananta (Umbeara), Kalka (Kulgera), Watju (Mount Cavenagh), Wapirrka (Victory Downs) and Warnukula (Mulga Park) v Northern Territory of Australia [2017] FCA 446

Macdonnell Region 

Wikilyiri on behalf of the persons who are ngurraritja for Ananta (Umbeara), Kalka (Kulgera), Watju (Mount Cavenagh), Wapirrka (Victory Downs) and Warnukula (Mulga Park) v Northern Territory of Australia [2017] FCA 446. 

Between: 

Mick Wikilyiri, Mary Anderson, Donald Grant, Richard Shilling, and Stanley Douglas on behald of the persons who are ngurraritja for Ananta (Umbeara), Kalka (Kulgera), Watju (Mount Cavenagh), Wapirrka (Victory Downs) and Warnukula (Mulga Park) (Applicants) and Northern Territory of Australia, Colin Bruce Morton (Mount Cavenagh and Victory Downs), and Shane and Alethea Nicolle (Mulga Park), Umbeara Holdings Pty Ltd, Ordiv Petroleum Pty Ltd, Santos QNT Pty Ltd and Telstra Corporation Ltd (Respondents). 

Judge: Reeves J 

Determination: 

Native title exists in part of the determination area: it consists of non-exclusive native title rights and interests. 

Native title is held by people who are ngurraritja for Ananta (Umbeara), Kalka (Kulgera), Watju (Mount Cavenagh), Wapirrka (Victory Downs) and Warnukula (Mulga Park). 

Non-exclusive native title rights and interests: 

Excluding areas where native title has been found not to exist, the native title holders have the following non-exclusive native title rights and interests, including the right to conduct activities necessary to give effect to those, being: 

• the right to access and travel over any part of the land and waters; 
• the right to live on the land, and for that purpose, to camp, erect shelters and other structures; 
• 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 natural water on or in the land, except water captured by the holders of pastoral leases;
• the right to light fires for domestic purposes, but not for the clearance of vegetation; 
• the right to share or exchange natural resources, including traditional items made from the natural resources; 
• the right to maintain and protect sites and places that are important under traditional laws and customs; 
• the right to conduct and participate in the following activities: cultural activities, ceremonies, meetings, cultural practices relating to birth and death, and teaching the physical and spiritual attributes that are important under traditional laws and customs; 
• the right to make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs of the native title holders;
• the right to be accompanied on the land and waters by persons who are: required by traditional law for ceremonies or cultural activities, who have rights according to the traditional laws acknowledged by the native title holders, and required by the native title holders to assist in, observe, or record traditional activities on the areas

These non-exclusive rights are subject to the laws of the Commonwealth and the Northern Territory, and the traditional laws and customs of the native title holders. 

Additionally, these non-exclusive rights do not create rights in relation to: 

• minerals as defined in s 2 of the Minerals Acquisition Act 1953 (NT); 
• petroleum as defined in s 5 of the Petroleum Act 1984 (NT); 
• prescribed substances as defined in s 5 of the Atomic Energy Act 1953 (Cth) and the s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth). 

Finally, these rights do not include the occupation, possession, use and enjoyment of the land and waters on the native title holders to the exclusion of all others.

Non-native title rights and interests that exist in the determination area: 

The following interests were determined to exist on the date of determination: 

• pastoral leases, including Victory Downs, Mt Cavenagh, Mulga Park, and Umbeara;
• mining and petroleum tenements granted pursuant to the Mineral Titles Act and the Petroleum Act respectively; 
• rights and interests of Telstra Corporation Limited;
• rights of Aboriginal persons according to the pastoral leases reserved in favour of Aboriginal people under s 38(2) to (6) of the Pastoral Land Act 1992 (NT); 
• the rights of Aboriginal persons by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); 
• the rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other authority as required in the performance of their duties; and
• the interests of persons to whom rights and interests have been granted by the Government in the exercise of its power or conferred by statute. 

Where conflict arises, the existence of native title rights does not prevent the exercise of a non-native title interest in the area. 

Areas where native title does not exist within the determination area: 

• parts of the determination area covered by public works, as defined in s 253 of the Native Title Act, that were constructed or established before 23 December 1996 or commenced to be constructed or established before that date (including public roads, gravel and fill pits, government bores, river and rain gauges, and pipes);
• NT Portion 3154 on which a radio repeater was constructed or established by the Australian Telecommunications Commissions; 
• NT Portion 4975 comprising trucking yards and adjoining road that is part of the adjacent land and waters to the branch line of Alice Springs-Tarcoola Railway 

Yankunytjara Mtutjara Aboriginal Corporation ICN 8170 is to perform the 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 in trust for the native title holders.  

There is access to the full text of the determination available via the URL link. 

Background:

In May 2015, Mick Wikilyiri and others filed a native title determination application over areas in Central Australia. Within six weeks, an anthropological report was presented to the respondents as well as maps relating to the area. The parties came to an agreement in a short period of time aided by these documents. 

In May 2016, the Northern Territory Government provided the applicants with documents regarding areas where native title had been extinguished. Within a short period of time, the parties reached an agreement about these areas.  

Judgment Details:

In March 2017, just two years after the process began, the parties filed their signed written agreement with the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) and requested a determination. 

The Court was satisfied that it would be appropriate and within its power to recognise the native title over the determined areas. Reeves J congratulated the parties on how brief and successful the negotiations had been.

Native title exists in parts of the determination area.

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