Kngwarraye on behalf of the members of the Arnerre, Wake-Akwerlpe, Errene and Ileyarne Landholding Groups v Northern Territory of Australia [2011] FCA 765

Tanami Desert, western adjacent to the Stuart Highway

Registered on the National Native Title Register

Between: Tommy Thompson Kngwarraye and others on behalf of the members of the Arnerre, Wake-Akwerlpe, Errene and Ileyarne Landholding Groups (Applicant) and Northern Territory of Australia, and Elizabeth Ann Frith and Charles Oliver Frith (Respondents)

Judge: Reeves J

Where made: Akwerrenge Community Living Area

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 members of one or more of the Arnerre, Wake-Akwerlpe, Errene, and Ileyarne Landholding Groups, through their descent (including adoption) from their paternal and maternal grandparents and who are accepted as such by senior members of a landholding group.

Exclusive native title exists over part of the determination area 

The native title holders have possession, occupation, use, and enjoyment of the area described as NT Portion 4336 (vacant Crown land per s 47B NTA), to the exclusion of all others. 

Non-exclusive native title exists over parts of the determination area 

These rights and interests exist over the relatively small areas described as parts of NT Portions 3375 (Neutral Junction Pastoral Lease Area), 5017 and 5867 (Crown Lease Areas) in Schedule B (map). They include the right to:

• access.
• live on;
• take natural resources, to use, share and exchange;
• conduct cultural activities; and
• maintain and protect traditionally important places.

These rights and interests are exercisable in accordance with traditional law and custom and are subject to the valid laws of the Northern Territory and Commonwealth.

Other (non-native title) rights and interests in the determination area include:

• in relation to the part of NT Portion 3375, the interests of the Neutral Junction pastoral leaseholders;
• in relation to the part of NT Portions 5017 and 5687, the interests of the AustralAsia Railway Corporation under separate Crown Leases;
• the interest of Newmont Tanami Pty Ltd under the Mining Act (NT);
• the interest of Nupower Resources Ltd under the Mining Act (NT);
• the rights and interests of the part of NT Gas Pty Ltd under a pipeline licence and under an energy supply easement for the Amadeus Basin to Darwin gas pipeline;
• in relation to the part of NT Portion 3375, the rights of Aboriginal persons per the reservations contained in the pastoral leases and identified in ss 38(2) to 38(6) of the Pastoral Land Act 1992 (NT);
• the rights of Aboriginal persons per the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); and
• the interests of persons who have valid rights and interests conferred by statute or otherwise.

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

See the Extract from the National Native Title Register (attached below) for further information about the non-native title rights and interests.

Prescribed Body Corporate

The native title holders will nominate an Aboriginal corporation to perform the functions required under the Native Title Act 1993 (Cth) within 12 months of this determination being made, or the Court will then make further directions. The native title is not to be held in trust. 

On 9 July 2012, the Kaytetye Tywerate Arenge Aboriginal Corporation was nominated as the native title holder's agent for this determination.

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

Background

On 13 July 2011, Justice Reeves made this determination and gave the parties the liberty to apply, among other things, to establish whether any pastoral improvements referred to in Schedule C wholly extinguished native title in the affected areas.

The Extract from the National Native Title Register (attached below) describes variations to this determination as follows.

On 4 August 2011, Justice Reeves made orders to replace Schedule B, the map of the determination area.

On 19 August 2020, following the filing of an application for a revised native title determination, the Federal Court ordered that this determination be varied so as to: delete the clause headed 'Pastoral Improvements' from Schedule C (Areas where native title does not exist), meaning that the pastoral improvements did not wholly extinguish native title. The variation also corrects the error in the description of the native title holders by replacing the words 'paragraph 3' with 'paragraph 4' in paragraphs 5(a) and 5(b).

The Register entry, the Extract, and the attached Schedules contain the details of the determination as varied.

Details of Judgment

Justice Reeves congratulated the parties on their collaborative approach [26]. His Honour was satisfied that it was appropriate to make this determination by consent of the parties and under s 87 of the NTA.

Native title exists over parts of the determination area.

Related Entries

Documents

Glossary