Freddie on behalf of the Kankawarla, Kanturrpa, Kurtinja, Patta, Pirrtangu, Purrurtu and Warupunju landholding groups v Northern Territory of Australia [2019] FCA 1024

Tennant Creek

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

Between: Colin Freddie, Ian Waistcoat, Jeffrey Foster, Michael Jones, Mick Murphy, Norman Frank, Ronald Brown and Rose Graham (Applicant) and Northern Territory of Australia, Colour Minerals Pty Ltd and Jemena Northern Gas Pipeline Pty Ltd (Respondents)

Judge: Charlesworth J

Where made: Lirripi, on the cattle stations around 36km south of Tennant Creek

Determination

Native title exists in parts of the determination area 

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

Native title holders

Kankawarla, Kanturrpa, Kurtinja, Patta, Pirttangu, Purrurtu and Warupunju landholding groups.

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

These rights exist over the area described in Schedule A and include:

• access and travel over any part of the land and waters;
• live on the land, and for that purpose, to camp, erect shelters and other structures;
• hunt, gather and fish;
• take and use the natural resources;
• access, take and use natural water on or in the land except water captured by the holder of the Tennant Creek Pastoral Lease;
• light fires for domestic purposes, but not for the clearance of vegetation;
• share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;
• access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs;
• conduct and participate in cultural activities, ceremonies, meetings, cultural practices relating to birth and death including burial rites and teach the physical and spiritual attributes of sites and places on the land and waters that are important under traditional laws and customs;
• make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders provided that it does not purport to control the access of such persons to the area;
• be accompanied on the land and waters by persons who, though not native title holders, are required by traditional law and custom for the performance of ceremonies or cultural activities or to assist in, observe or record traditional activities on the areas, or those that have rights according to the traditional laws and customs acknowledged by the native title holders.

Other rights and interests in the determination area include the rights and interests of:

• Gordon Ford, Joan Suzanne Ford, Gregory Joseph Ford and Ken Gerard Ford under the Tennant Creek Pastoral Lease in relation to seven of the NT Portions;
• Jemena Northern Gas Pipeline Pty Ltd as the holder of Pipeline Licence No. 34 granted under the Energy Pipelines Act 1981 (NT) in relation to one of the NT Portions;
• APT Pipelines (NT) Pty Ltd as the holder of Pipeline Licence No. 4 granted under the Energy Pipelines Act 1981 (NT) and as the beneficiary of the rights and interests under Access Easement Dealing No. 191614 granted to the Northern Territory of Australia in relation to two of the NT portions;
• APT Pipelines (NT) Pty Ltd as sublessee under Sublease Dealing No. 819589 (expires on 12 Dec 2032) in relation to seven of the NT Portions;
• AustralAsia Railway Corporation under Crown Lease Term 1902 and 1880 in relation to two of the NT portions;
• holders of 46 titles granted under the Mineral Titles Act 2010 (NT) (or its precedessor) (all with varying expiry dates);
• Telstra Corporation Limited as the owner or operator of telecommunication facilities within the determination area, created pursuant to Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 Cth), the Telecommunications Act 1991 (Cth) and under Schedule 3 of the Telecommunications Act 1997 (Cth);
• Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases set out in s 38(2) to (6) of the Pastoral Land Act 1992 (NT) in relation to seven of the NT Portions;
• Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1984 (NT) (note that this is now a historical act and is a precursor to the current Northern Territory Aboriginal Sacred Sites Act 1989 (NT));
• rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth as required in the performance of statutory duties;
• persons to whom valid and validated rights and interests have been conferred by statute or granted by the Crown pursuant to statute or in the exercise of its executive power.

See the National Native Title Tribunal's extract from the determination 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 Ngurramarla 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 Kankawarla, Kanturrpa, Kurtinja, Patta, Pirttangu, Purrurtu and Warupunju landholding groups.

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

Background

On 3 October 2017, the applicant commenced the proceeding for an application for a determination of native title. All respondents then joined to resolve the whole claim by consent under s 87 of the Native Title Act 1993 (Cth) (NTA) [2].

A notice was issued under s 66 and the period specified in the notice ended on the 23 April 2018 [6].

On 14 June 2019, the agreement was filed with the Court in writing, signed by or on behalf of the parties, and was amended on 26 June 2019 [6].

On 24 November 2019, the application was accepted for registration under s 190A of the NTA [6].

Purrurtu Traditional Owner, Ross Jakamarra Williams, said that 'it is a proud day today because older people fought very hard. It's good to be part of the negotiation. The younger generation can nurture and keep the story going for the next generation' (National Indigenous Times, 2019).

Kanturrpa Traditional Owner Beryl Brown was happy to have native title recognised 'after all these years' (National Indigenous Times, 2019).

Native title holder, Jerry Kelly, said 'native title gives us a say over what is happening on our country and to protect our sacred sites and dreamings' (Central Land Council, 2019).

Details of Judgment

The Court held that the application was valid [10] and that it is within the power of the Court to make the orders sought by the parties [11], [19].

The Court was satisfied that the requirements of s 225 of the NTA were complied with in the agreement, in accordance with s 94A [7]-[9], and that there is no other determination or application for a determination of native title on the specified land and waters as per s 68 and s 67(1) of the NTA [10].

Justice Charlesworth was satisfed that the parties entered into the agreement freely, and on an informed basis [14]-[15]; the Northern Territory provided an anthropological report and prepared an analysis on the extinguishment of native title in parts of the area [16]. Justice Charlesworth also noted the importance of the anthropological reports in assisting 'non-Indigenous Australians to better appreciate the unique and ancient culture of Aboriginal peoples and Torres Strait Islanders and to better appreciate the relevance and importance of that culture' [17]. The Court also highlighted how much care and concern the landholding groups had to ensure the land and waters in the area were respected and protected [18].

Charlesworth J made orders in the terms proposed by the parties [19].

Native title exists in part of the determination area

Related Entries

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