Ryan on behalf of the members of the Central Limbunya, Nawurlala, Parayi-Kakaru and Tjutamalin landholding groups v Northern Territory of Australia [2020] FCA 1283

Limbunya

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Banjo Ryan Jangala, Billy Hammill Japarta, Robbie Peters Jangari, Timmy Vincent Julama and Violet Wadrill Nanaku on behalf of the members of the Central Limbunya, Nawurlala, Parayi-Kakaru and Tjutamalin landholding groups (Applicants) and Northern Territory of Australia and Jam Pastoral Pty Ltd as trustee for the Jam Pastoral Trust (Respondents)

Judge: White J

Where made: Kalkaringi, Northern Territory

Determination

Native title exists in parts of the determination area

It consists of non-exclusive native title rights and interests.

Native title holders

Native title is held by the members of the Central Limbunya, Nawurlala, Parayi-Kakaru and Tjutamalin landholding groups.

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

These rights exist over the land and waters described in Schedule B and include the right to:

• access and travel on;
• live on the land, and for that purpose, to camp, erect shelters and other structures;
• hunt, gather and fish;
• access, take, and use natural water on or in the land, except water captured by the holder of Perpetual Pastoral Lease No. 1136;
• 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 and to maintain and protect sites and places that are important under traditional laws and customs;
• conduct and participate in cultural activities, ceremonies, meetings, cultural practices relating to birth and death including burial rites and teaching the physical and spiritual attributes of sites and places that are important under traditional laws and customs;
• make decisions about the use and enjoyment by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders provided that the right does not extend to making any decision that purports to control the access of such persons to the Determination Area; and
• be accompanied 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 land and waters; (ii) people who have rights in relation to the land and waters according to the traditional laws and customs acknowledged by the native title holders; (iii) people required by the native title holders to assist in, observe, or record traditional activities on the areas. 

Other rights and interests in the determination area include:

The rights and interests of - 

• Jam Pastoral as trustee for Jam Pastoral Trust;
• the proprietor of NT Portion 2677;
• Scriven Exploration (under the Mineral Titles Act 2010 (NT));
• Wiso Oil (under the Petroleum Act 1984 (NT));
• Paltar Petroleum (under the Petroleum Act 1984 (NT);
• Telstra Corporation (under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Acts 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
• Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• access by employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority; and
• granted by the Crown or conferred by statute. 

Provisions relevant to the native title rights

There are no native title rights and interests in:

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

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

The Malapa 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 Central Limbunya, Nawurlala, Parayi-Kakaru and Tjutamalin landholding groups.

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

Background

The 5,218 square kilometre determination area, northwest of Kalkaringi, belonged to Lord Vestey's cattle empire and was run as part of Waterloo Station until the 1980s. After Gurindji stockman Vincent Lingiari led striking Aboriginal workers off Wave Hill Station in 1966, families working on Limbunya Station also walked-off. Many of the families today live in Kalkaringi and Daguragu and native title holders continue to access their country for cultural and ceremonial purposes (CLC, Native Title to be recognised on Limbunya Station).

Limbunya Station was a major ceremonial centre in the continuation of law and customs and it was not uncommon for Indigenous station workers from the region to walk hundreds of kilometres during the wet season to attend such ceremonies (CLC, Native Title to be recognised on Limbunya Station).

The Central Land Council (CLC) lodged the native title application on behalf of the applicant in January 2017, in part because there is mining interest in the pastoral lease area. CLC's manager of native title, Francine McCarthy noted that '[t]he determination also recognises that their cultural connection to their land dates back to time immemorial' (CLC, Native Title to be recognised on Limbunya Station).  

Details of Judgment

At an on-country hearing at Kalkaringi, the Federal Court recognised the applicant's rights in relation to parts of the determination area. White J noted '[t]he fact that all parties to the application both consent to, and support, the making of the determination is significant' [25]. 

The signed agreement was filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) and the Court was satisfied that making a determination of native title was within its power [9].

It was also agreed that certain public works and other infrastructure (described in Schedule C) had wholly extinguished native title rights and interests over parts of the determination area. However, White J held that the parties were 'at liberty to apply to establish the precise location and boundaries of these public works and the adjacent land and waters referred to in Schedule C' [21]. 

Native title exists in parts of the determination area.

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References

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