Henderson on behalf of the Bamayu (Wurwanawanji-Yarrayarra), Bamayu (Titirlku), Marlinja, Ngapa Jangirlu, Walanypirri and Wilyuku Groups v Northern Territory of Australia (Powell Creek Pastoral Lease Proceeding) [2020] FCA 1550

Southwest of Elliott. Includes Powell Creek Telegraph Station and Lake Woods.

The determination area covers the Powell Creek leasehold land, freehold land held by the Jangirurlu Aboriginal Corporation, and freehold land held by the Pamayu Aboriginal Corporation. For a detailed description of the area see Schedule A and for maps see Schedule B of the determination, attached below under documents. The area is in the Local Government Area of the Barkly Region.

Registered on the Native Title Register

Between:

Peter Henderson, Harry Bates, Heather Wilson, Warren Campbell, Mary Noonan, Linda Benson, Neil Alum, Jeffrey Dixon, and Mary Raymond on behalf of the Bamayu (Wurwanawanji-Yarrayarra), Bamayu (Titirlku), Marlinja, Ngapa Jangirlulu, Walanypirri and Wilyuku Groups (First Applicant)

Lady Dixon, William Kingston, Eric Kingston, Peter Henderson, Janet Nabarula, Mary Noonan, Pompey Raymond and Jeffrey Dixon on behalf of the Mali Mali, Yapa Yapa, Walanypirri, Jarrimanu and Wilyuku people (Second Applicant)

Northern Territory of Australia, Consolidated Pastoral Company Pty Ltd and APT Pipelines (NT) (Respondents)

Judge: White J

Where made: Old Banka Banka Homestead

Determination

Native title exists in parts of the determination area

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

Native title holders

Native title is held by persons who are:

• members of Bamayu (Wurwanawanji-Yarrayarra),Bamayu (Titirlku), Marlinja, Ngapa Jangirlulu, Walanypirri and Wilyuku estate groups by reason of patrilineal
  descent, relation to someone of patrilineal descent, or having been
  adopted or incorporated into the descent relationships; or
• spouses of the estate group members who are Aboriginal members of neighbouring estate groups.
  

Exclusive native title rights and interests exist over part of the determination area

This is the right to possession, occupation, use, and enjoyment of the area, including the right to access and take for any purpose the resources of those areas, described in Schedule C item 1, to the exclusion of all others.

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

These rights and interests exist over the area described in Schedule C item 2 and include the right to:

• to access, remain on, and use the areas;
• to access and 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 under:

• Perpetual Pastoral Lease No. 948;
• two fee simple estates of the Jangirurlu Aboriginal Corporation and the Pamayu Aboriginal Corporation;
  
• rights of APT Pipelines (NT) Pty Ltd under a sublease of the Perpetual Pastoral Lease and an Energy Supply Easement over part of that lease area;
• a conservation covenant for the Parks and Wildlife Commission of the Northern Territory;
• Railway easements pursuant to section 14A of the AustralAsia Railway (Special Provisions) Act (NT);
• Energy Supply Easement in favour of the NT Government;
• rights of the Minister pursuant to the Heritage Act (NT) 2011 over the Powell Creek Telegraph Station;
• rights of Aboriginal persons (whether Native Title holders or not) pursuant to the reservation in favour of Aboriginal peoples in the Perpetual Pastoral Lease made by s 38 of the Pastoral Land Act 1992 (NT);
  
• rights of Aboriginal persons (whether native title holders or not) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• rights of Government to perform their statutory duties; and
  
• exploration licenses and permits.

See clause 16 of the extract 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 RNTBC 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) for the native title holders.

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

Background

The first application in this matter was filed on 21 May 2001 (NTD6038/2001) by the second applicant. The application area covered part of the Powell Creek Pastoral Lease (Perpetual Pastoral Lease No. 948). This area was subject to several future act notices under s 29 of the Native Title Act 1993 (Cth) [A].

The second application was filed on 8 May 2021 (NTD1/2018) by the first applicant. This was the principal application. The area was over the land and waters within the bounds of the Powell Creek Pastoral Lease [B].

On 11 August 2020, the Court ordered that the portion of the first application (NTD6038/2001) which overlapped the portion of the second application (NTD1/2018) be heard together in this proceeding [C].

The application was also heard alongside the Banka Banka East, Banka Banka West and Helen Springs Pastoral Leases. Some of the anthropological and other material the applicants relied upon was common to several of the applications [8].

These applications were significant because they sought the right to use the land for commercial purposes (Daniel Fitzgerald, ABC News online, 10 Apr 2019).

This right 'to take and use resources for any purpose' was first
recognised in the Northern Territory in Borroloola in August 2016 (Northern Land Council, 2020). See Rrumburriya Borrroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908, below.

According to the CEO of Northern Territory Cattlemen's Association (NTCA), the pastoral lease holders usually bear the responsibility to manage feral animals (Daniel Fitzgerald, ABC News online, 10 Apr 2019). According the ABC Rural, the The Northern Land Council argued that "ownership of a pastoral lease does not give cattle producers exclusive rights to commercially exploit the area" (Daniel Fitzgerald, ABC News online, 10 Apr 2019).

White J concluded that native title holders have the right to access and
take for any purpose the resources in the area of the pastoral lease [9]-[10].

Details of Judgment

White J noted that these two applications were part of a group of applications (known as the 'Banka Banka Group') which have travelled together in the court. Other applications included Banka Banka East, Banka Banka West and Helen Springs Pastoral Leases.

White J at [30] said, "[h]aving reviewed the material provided by the parties, I am
satisfied that there is a sound rational basis for the consent by the
Northern Territory to the determination. It is very evident that the
Territory has subjected the material provided by the applicants to a
rigorous assessment."

At [40]: "...I note that the order of this Court will 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."

Native Title exists in part of the determination area.

Related Entries

References

Documents

Glossary