Farrell on behalf of the Murungun Yunulalda, Budal Lirijal, Mambali Amaling-Gan, Murungun Igalumba and Mambali Lajarirr Estate Groups v Northern Territory of Australia [2020] FCA 1273

West of Gulf of Carpentaria

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

Between: 

Ashwood Farrell, Dennis Watson, Esther Wilfred, Peter Ellis and Roy Cresswell on behalf of the Murungun Yunulalda, Budal Lirijal, Mambali Amaling-Gan, Murungun Igalumba and Mambali Lajarirr Estate 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

Murungun Yunulalda, Budal Lirijal, Mambali Amaling-Gan, Murungun Igalumba and Mambali Lajarirr estate groups.

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

A non-exhaustive list of activities include:

• travel over, move about and access those areas;
• hunt and fish on the land and waters of those areas;
• gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
• take and to use the natural water on those areas (not including the rights to take or use water captured by the holders of Hodgson River Pastoral Lease);
• live and camp on the areas, and to erect shelters and other structures on those areas;
• light fires for domestic purposes;
• conduct and participate in the following activities on those areas: cultural activities, cultural practices relating to birth and death, including burial rites, ceremonies, meetings and teaching the physical and spiritual attributes of sites and places on those areas that are of traditional significance;
• maintain and protect sites and places on those areas that are of traditional significance;
• be accompanied onto the land and waters by persons who, though not native title holders, are: people required by traditional law and custom for the performance of ceremonies or cultural activities on those areas, people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members and people required by the estate group members to assist in, observe, or record traditional activities on the areas

Other rights and interests in the determination area include:

• the rights and interests of the holder of Hodgson River Pastoral Lease;
• the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the determination area, created pursuant to 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 Telecommunications Act 1997 (Cth);
• the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples in Hodgson River Pastoral Lease made by s 38 of the Pastoral Land Act 1992 (NT);
• the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority as required in the performance of statutory duties;
• the rights to water lawfully captured by the holders of other interests;
• the rights and interests of persons to whom interests have been granted by the Crown pursuant to statute or in the exercise of executive power, or have been granted by statute;
• the rights and interests of the holder of Exploration Permit No. 153 granted under the Petroleum Act 1984 (NT)

See the NNTT Extract attached below 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 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 Murungun Yunulalda, Budal Lirijal, Mambali Amaling-Gan, Murungun Igalumba and Mambali Lajarirr estate groups.

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

Background

On 12 November 2013, the Murungun Yunulalda, Budal Lirijal, Mambali Amaling-Gun, Murungun Igalumba and Mambali Lajarirr estate groups applied for a determination of native title in the Hodgson River Pastoral Lease area in accordance with the Native Title Act 1993 (Cth) (NTA) [1]. This application occurred on the same day as an application for a determination on adjacent land over the Nutwood Downs Pastoral Lease area [2].

Since then, the parties in the Hodgson River application reached an agreement and applied to the Court for a determination of native title by consent, in accordance with s 87 of the NTA [4].

Justice White could not be on country when he handed down the determinations due to COVID restrictions.

Northern Land Council CEO Marion Scrymgour said '[this determination] means there is recognition that native title holders had a functional economy at the time that this country was taken from them. [it] is long overdue but it gives us all some comfort to see that the Courts are finally recognising what Aboriginal people always knew - that there was a customary economy in place and that is being recognised in a modern context' (Katherine Times, 2020).

Details of Judgment

In the proceeding, both parties agreed to the terms of a determination of native title to recognise the native title rights and interests held by the Murungun Yunulalda, Budal Lirijal, Mambali Amaling-Gun, Murungun Igalumba and Mambali Lajarirr estate groups in relation to the lands and waters covered by the Hodgson River Pastoral Lease Application. The signed agreement was filed in the Federal Court and the White J was satisfied pursuant to s 87 of the NTA that a determination of native title was within the Court's power.

Justice White took into account that the determinations 'will bind the community generally' [18], that the Territory had carefully considered the application through expert assessment when consenting [19] and that all parties had had the opportunity to receive independent legal advice [30].

White J made orders in the terms proposed by the parties [33].

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