Fulton on behalf of the Mambali Amaling Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyun Ngatanyana Estate Groups v Northern Territory of Australia [2020] FCA 1271

Nutwood Downs

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

Between: Vincent Fulton, Roy Cresswell, Peter Ellis, Barney Ellaga and Nelson Limmen on behalf of the Mambali Amaling-Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyung-Ngatanyana Estate Groups (Applicant) and Northern Territory of Australia and Lexcray 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.

Native title holders

Native title is held by the members of the Mambali Amaling-Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyung-Ngatanyana Estate Groups.

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

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

• access, remain on and use the areas;
• access and to take for any purpose the resources of the areas; and
• to protect places, areas and things of traditional significance.

Other rights and interests in the determination area include:

The rights and interests of:

• the holder of Perpetual Lease No. 1052;
• Telstra Corporation (under 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 Telecommunication Act 1997 (Cth));
• Aboriginal persons (whether or not native title holders) under the reservation in favour of Aboriginal peoples in Perpetual Pastoral Lease No. 1052 made by s 38 of the Pastoral Land Act 1992 (NT);
• Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• holders of Exploration Licence Title No. 32009 and Exploration Permits 153 and 98, granted under the Mineral Titles Act 2010 (NT) and the Petroleum Act 1984 (NT);
• access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority; and
• those 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 in the Minerals (Acquisition) Act 1953 (NT);
• petroleum as defined in the Petroleum Act 1984 (NT); and
• prescribed substances as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and the Atomic Energy Act 1953 (Cth).

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

The Top End (Default PBC/CLA) 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 Mambali Amaling-Gan, Murungun Igalumba, Murungun Milgawirri, Budal Yuwaran and Guyal Bardi Bardi Dumnyung-Ngatanyana Estate Groups.

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

Background

COVID-19 restrictions prevented Justice White of the Federal Court being on-country with native title holders at the Minyerri (Hodgson Downs) community.

Marion Scrymgour, CEO of the Northern Land Council (NLC), noted that this "long-over due" determination recognises "that native title holders had a functional economy at the time that this country was taken from them" (NLC, NLC welcomes recognition of native title rights to pastoral leases). 

Details of Judgment

This determination was applied for on 12 November 2013 [1]. The hearing for this application was heard simultaneously alongside an application filed in respect of the "Hodgson River Pastoral Lease" [2]-[3]. 

White J noted that "the five estate groups are united in and by the body of laws and customs of the wider regional bloc; and that they held native title rights and interests at sovereignty(1825); and that they have continued to do so in the present time" [23]. 

Unlike determinations where native title holders are identified as the decedents of a common ancestor, this determination recognised that native title was held by members of the five estate groups, and membership of an estate group is determined by "patrilineal descent" - i.e. descent is traced exclusively through males from a founding male ancestor [22]. 

Native title exists in parts of the determination area.

Related Entries

References

Documents

Glossary