Dixon on behalf of the Narrwan, Ngayirrirni and Kinbininggu Estate Groups v Northern Territory of Australia [2020] 1544 FCA

Upper Tanami East, south-west of Limmen National Park, north-west of Lake Woods Conservation Covenant. 

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

Between: Raymond Dixon on behalf of the Narrwan, Ngayirrirni and Kinbininggu Estate Groups (Applicant) and Northern Territory and Anthea Henwood (Respondents)

Judge: White J

Where made: Elliot, Northern Territory. 

Determination

Native title exists in parts of the Determination Area.

It consists of non-exclusive native title rights and interests. The non-exclusive native title is recognised in those parts of the Determination Area identified in Schedule C.

Native title holders

Native title is held by the Narrwan, Ngayirrirni and Kinbininggu Estate Groups. 

These Estate Groups have also acknowledged that, in accordance with traditional law and custom, native title rights and interests are also held by:

• Members of neighbouring estate groups, and 
• Spouses of the estate group members. 

Non-exclusive native title rights and interests exist over part of the Determination Area.

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

• access, remain on, travel over and use the areas;
• access and take resources from the areas for any purpose;
• protect places, areas and things of traditional significance;
• hunt and fish on the land and waters of the areas;
• gather and use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
• take and use the natural water on the areas, subject to water captured by the holders of the pastoral lease;
• live and camp on the areas, and to erect shelters and other structures on the areas;
• light fires for domestic purposes;
• conduct and participate in cultural activities; cultural practices; ceremonies; meetings; and teaching the physical and spiritual attributes of sites and places that are of traditional significance;
• be accompanied onto the land and waters by people who are required by traditional law and custom for the performance of ceremonies or cultural activities;
• be accompanied onto the land and waters by people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and
• be accompanied onto the land and waters by people required by the estate group members to assist in, observe, or record traditional activities. 

These native title rights and interests do not confer the right to:

• possess, occupy, use and enjoy the area to the exclusion of all others;
• control the access to and use of those parts of the land and waters of the areas or their resources;
• to access or take water captured by the holders of the pastoral lease;
• to access or take resources that are the private or personal property of another, including infrastructure, machinery, livestock or crops. 

Other rights and interests in the Determination Area include those held by:

• the holders of the Buchanan Pastoral Lease (Perpetual Pastoral Lease No. 1082);
• AustralAsia Railway Corporation;
• Telstra Corporation Limited:
• Aboriginal persons pursuant to section 38 of the Pastoral Land Act 1992 (NT);
• Aboriginal persons pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• an employee, servant or agent of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties;
• rights to water captured by the holders of other interests;
• persons to whom rights and interests have been granted by the Crown pursuant to statute or in the exercise of executive power;
• persons to whom rights and interests have been otherwise conferred by statute; and
• the holders of titles granted under the Petroleum Act 1984 (NT)

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 Narrwan, Ngayirrirni and Kinbininggu Estate Groups.

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

Background

On 25 May 2015, the Narrwan, Ngayirrirni and Kinbininggu Estate Groups first made a native title determination application over the land and waters within the bounds of the Buchanan Downs Pastoral Lease. On 7 April 2020, they filed an amended application with the consent of the parties and leave of the Court.

The parties, including Anthea Henwood, who is the holder of the Pastoral Lease, reached agreement and applied under section 87 of the Native Title Act 1993 (Cth) for a determination of native title by consent.

On 29 October 2020, the matter was heard together with the Hidden Valley application as determined in Dixon on behalf of the Narrwan and Badpa Estate Groups v Northern Territory of Australia [2020] FCA 1545. This was due to their simultaneous filing and geographical proximity. Although similar, each judgment was written separately.

Ultimately, White J gave effect to the parties' agreements and thereby recognised native title in the area described by Schedule C. The Court determined that it was appropriate to recognise the native title rights and interests of the Narrwan, Ngayirrirni and Kinbininggu Estate Groups after consideration of the circumstances of the agreement.

In the aftermath of the determination, native title holder and applicant Raymond Dimakarra Dixon commented: 'It makes us proud of who we are. It's been a long journey for my people and that country has always been in our hearts and we're going to cherish it and pass it on to the next generations' (Robinson 2020). 

Northern Land Council CEO Marion Scrymgour drew attention to the recognition of the native title right to take resources and use them for any purpose. He said this was 'recognition that native title holders had a functional economy - based on traditional rights and responsibilities at the time that this country was settled. It is important that the Court is recognising what Aboriginal people have always known - that there was a customary economy in place, which is being recognised in contemporary times.' (Northern Land Council 2020). 

Details of Judgment

White J found that all matters under section 87 of the Native Title Act 1993 (Cth) were satisfied. White J emphasised that the role of the Court under section 87 was to consider the fairness of the parties' agreement having regard to the involvement of the State or Territory in the agreement. His Honour found this case an example of good practice:

• 'There is also no difficulty in concluding that, during the long period during which the proceedings have been on foot, the Territory has engaged in a careful assessment of the evidence provided by the applicant in support of the application; that all parties, having been legally represented throughout; that the parties have reached their agreement on a free and informed basis; that the decision of the Territory to consent to the determination is sound and rational; and there are no 'negative' factors indicating that the determination may be inappropriate. On the contrary, the materials provided by the parties indicate the appropriateness of the consent determination' [15].

His Honour then adhered to matters under section 225 of the Native Title Act 1993 (Cth). In doing so, His Honour listed the native title holders, the nature and extent of their rights, the nature and extent of any other interests in the determination area, and the relationship between the sets of rights.

White J was satisfied that a determination of native title was within the power of the Court and gave effect to the parties' agreement. His Honour made orders in the terms proposed by the parties. 

In his closing remarks, White J emphasised that the Court does not grant native title. Instead, 'the Court's order is a formal recognition that the native title rights and interests of the estate groups exist, and have always existed, at least since European settlement' [26].

Native title exists in parts of the Determination Area.

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References

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