Foster on behalf of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups v Northern Territory of Australia (Helen Springs Pastoral Lease Proceeding) [2020] FCA 1551

Western Barkly Tableland

Registered on the Native Title Register.

Between:

Dick Foster and others on behalf of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups (Applicant) and Northern Territory of Australia (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 persons who are:

• members of the following estate groups by reason of patrilineal descent, relation to someone of patrilineal descent, or having been adopted or incorporated into the descent relationships of the Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Groups; or
• Aboriginal persons who are members of neighbouring estate groups and also those who are spouses of the estate group members.

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

These rights exist over the area described in Schedule C

For members of the estate groups these rights and interests include the right to:

• access, remain on and use the areas. This includes activities such as traveling over the areas, moving about, living on, camping, erecting shelters and other structures, lighting fires for domestic purposes as well as conducting and participating in cultural activities;
• access and to take for any purpose the resources of the areas. This includes hunting and fishing on the land and waters of those areas, gathering and using the natural resources such as food, medicinal plants, wild tobacco, timber, stone and resin, as well as taking and using the natural water which is not captured by holders of Perpetual Pastoral Lease No. 1001;
• protect places, areas and things of traditional significance including activities such as the maintenance of these places and areas;
• being accompanied onto the land and waters by non-native title holders if required by traditional laws and customs to perform ceremonies or cultural activities; have rights in relation to the areas according to traditional laws and customs acknowledged by estate group members; and if required by estate group members to assist in, observe, or record traditional activities on the areas; and

All of these rights and interests are subject to and exercisable according to the traditional laws and customs of the native title holders and the laws of the Northern Territory of Australia and the Commonwealth of Australia.

There are no native title rights and interests in 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)), and prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)).

For members of neighbouring estate groups and spouses of estate group members, their rights and interests include the right to:

• access, remain on and use the areas; and
• access the resources of the areas

Other rights and interests in the determination area include:

• rights and interests of the holder of Perpetual Pastoral Lease No. 1001;
• valid rights of use for stock routes and travelling stock;
• rights to easements in parts of the area;
• Telstra Corporation Limited have rights and interests within the determination area including those to inspect land and maintain telecommunication facilities. These rights are created by the Post and Telegraph Act 1901 (Cth), the Telecommunication Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
• the rights of Aboriginal persons (whether native title holders or not) pursuant to the reservation in favour of Aboriginal persons made by s 38 of the Pastoral Land Act 1992 (NT) and pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• rights of access by access by those affiliated with the Northern Territory or Commonwealth or other statutory authority;
• rights to water lawfully captured by the holders of other interests;
• rights and interests of persons to whom they have validly been granted by the Crown through statute or in the exercise of executive power, and otherwise conferred by statute; and
• rights and interests of those who hold permits and licenses granted under the Mineral Titles Act 2010 (NT), the Petroleum Act 1984 (NT) and the Energy Pipelines Act 1981 (NT).

See Schedule E for further information about the non-native title rights and interests.

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

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 Kanturrpa, Ngapa, Pirrtangu, Walanyja, Walanypirri, Warranangku and Wirntiku Estate Groups. The native title is not held in trust for the native title holders.

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

Background

This native title application was first filed on 8 September 2011 [3]. The application was amended on 27 February 2018 and further amended on 12 October 2020 [7]. The parties sought a consent determination under s 87 of the Native Title Act 1993 (Cth) ('the NTA') [8].

In 2001, two applications were filed which covered portions of the primary determination area [4]. These applications were subject to future act notices made under s 29 of the Act [4]. On 11 August 2020, the court made orders pursuant to s 67 of the Act which had the effect of combining portions of these additional applications with the present application [6]. The present consent determination resolved the Helen Springs Pastoral Lease application in its entirety while resolving the other two applications in part only [8-9]. The group of applications have become known as the 'Banka Banka Group' and similar but separate judgments will be made in respect of each application [10]. Another application overlapped with the proposed determination area but has since been discontinued [5].

Native title holder Dick Foster noted the significance of this consent determination, suggesting the recognition of native title rights and interests will allow sacred sites to be conserved and protected (Katherine Times).

Details of Judgment

Following sections 68 and 67(1) of the Act, the court first determined that there had not been any previous determination made in respect of the proposed determination area nor does this determination overlap the area of another application [17].

Through mediation, agreement was reached on the terms of a determination of native title to provide recognition of the native title rights and interests held by the estate group members in relation to part of the land and waters covered by the Helen Springs Pastoral Lease Application [21-4]. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Act [24]. The court was satisfied that a determination of native title was within the power of the court [21-2].

The court found no identified circumstances that would suggest that making the determination in the terms proposed by the parties is inappropriate [40]. Orders were made to give effect to the parties' agreement and terms [42-46]. As a result, the court provided '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' [45].

Native title exists in parts of the determination area.

Related Entries

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