Dodd (Vincent) on behalf of the members of Jamangku, Japuwuny, Parlakuna-Palkinykarni and Yilyilyimawu landholding groups v Northern Territory of Australia [2020] FCA 1279

Victoria River Region

Registered with the National Native Title Tribunal on the Native title Register 09/09/2020.

Between: Topsy Dodd (Vincent), Paddy Doolak, Freddy Algy and Pauline Ryan on behalf of the members of the Jamangku, Japuwuny, Parlakuna-Palkinykarni and Yilyilyimawu Lanholding Groups (Applicants) 

And

Northern Territory of Australia, Gambamora Industries Pty Ltd, Australian Mineral Mines Pty Ltd (Respondents)

Judge: White J 

Determination

Native title exists in parts of the determination area

It consists of non-exclusive native title rights and interests as described in Schedule A and depicted on the map in Schedule B. Native title does not exist in the parts of the determination area described in Schedule C. 

Native title holders

The native title holders are the members of one or more of the Jamangku, Japuwuny, Parlakuna-Palkinykarni and Yilyilyimawu landholding groups.

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

These rights exist over the area described in Schedule A and depicted on the map in Schedule B, and include the right to:

• access and travel over the area; 
• live, camp, erect shelters and other structures on the land; 
• hunt, gather and fish on the land and waters; 
• take and use the natural resources of the land and waters;
• access, take and use the natural water on or in the land, except water captured by the holder of the Perpetual Pastoral Lease No 1002; 
• light fires for domestic purposes, but not for the clearance of vegetation; 
• share or exchange natural resources obtained on or from the land and waters, including traditional items made from natural resources; 
• access, maintain and protect places of cultural significance as under traditional law; 
• conduct and participate cultural activities, ceremonies, meetings, passing on knowledge and cultural practices relating to birth and death;
• make decisions about the use and enjoyment of the area by Aboriginal people who recognise themselves to be governed by traditional law; and
• the right to be accompanied on the area by people who are not native title holders but are required by traditional law to be on the land. 

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

• The pastoral interests of Gambamora Industries Pty Ltd subject to the Gurindji Wave Hill Walk off Route being a declared heritage place for the purposes of the Environment and Protection and Diversity Conservation Act 1999 (Cth) and the Heritage Act 2011 (NT).
• mining interests granted under the Mineral Titles Act 2010 (NT) to Linna Huang and to Australian Mineral Mines Pty Ltd; 
• petroleum interests granted under the Petroleum Act 1984 (NT), or its predecessor, to Wiso Oil Pty Ltd; 
• rights and interests of Telstra Corporation Limited; 
• the rights of Aboriginal persons contained in pastoral leases that are set out in the Pastoral Land Act 1992 (NT);
• the rights of Aboriginal persons under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); 
• the right of State, Commonwealth or local Government employees, agents or instrumentalities to access the determination area in order to fulfil their legal duties; and
• rights and interests granted by the Crown and/or permitted 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 Jinparrak Aboriginal Corporation Registered Native Title Body Corporate (RNTBC), is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as agent for the members of the Jamangku, Japuwuny, Parlakuna-Palkinykarni and Yilyilyimawu Lanholding Groups.

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

Background

The claimants sought a determination of native title over the area known as the Wave Hill Pastoral Lease area which covers about 5,492 sq kms in the Gurindji locality of the central region of the Northern Territory. Their application to the Federal Court was filed on 25 November 2016 [2].

This consent determination covers the area of land on which the 1966 Wave Hill Walk Off occurred. The Wave Hill Walk Off marked the beginning of the Land Rights movement in Australia, led by Vincent Lingiari, Billy Bunter and other Indigenous leaders (Pavey, Central Land Council).

Details of Judgment

The Court made this determination under s 87 of the Native Title Act 1993 (Cth) after the parties came to an agreement about its terms and then requested the Court to make the determination accordingly.

Citing King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386, Justice White clarifies the role of the Court in consent determinations such as the present one; "the Court does not routinely embark on its own inquiry into the merits of the claim in order to be satisfied that the orders sought are supportable and in accordance with the law. Instead... the Court places particular reliance on the agreement of the parties and on the State or Territory concerned discharging appropriately its responsibility in the public interest of undertaking a proper assessment of the application" [10]. 

In accepting the submissions of the parties, Justice White notes "that the order of this Court does not amount to a grant of native title to the estate holders. The order is instead a public and formal recognition that the native title rights and interests of the estate holders exist, and have always existed, at least since European settlement" [27]. 

Upon learning of the successful determination, traditional owner Pauline Ryan portrayed how important such a determination was for the native title holders, stating that "I [Ryan] was born on Wave Hill Station. It means everything to me and my family" (Pavey, Central Land Council). 

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