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Morgan v Northern Territory of Australia [2013] FCA 1078 | | Binomial Name: | Federal Court of Australia | | | Date: | 29 October 2013 | | | Sub Category: | Consent Determination (Native Title Act) | | Place: | Northern Central Northern Territory - Sunday Creek Pastoral Land | | State/Country: | Northern Territory, Australia | | The determination area is the site of the Sunday Creek Pastoral lease, a 400sq/km area with the Stuart Highway to the East and the Adelaide-Darwin railway to the West. Daly Water township is to the South-East. | | | | Legal Status: | Registered on National Native Title Register. | | | Legal Reference: | Tribunal file no: DCD2013/011
Federal Court file no: NTD28/2011. | | | Subject Matter: | Native Title | | URL: | http://www.austlii.edu.au/au/cases/cth/FCA/2013/1078.html | | | Summary Information: | | | Morgan v Northern Territory of Australia [2013] FCA 1078
Between:
TIMMY MORGAN (ON BEHALF OF THE BADPA (DALY WATERS) GROUP (applicants);
and
NORTHERN TERRITORY OF AUSTRALIA AND THOMAS GEORGE HENRY STOCKWELL AND BEVERLEY ELLEN STOCKWELL (respondents).
Judge: Mansfield J
Where made: Mataranka
Determination:
Native title exists in part of the determination area. It consists of non-exclusive native title rights.
Native title is held by: the Badpa (Daly Waters) estate group. This group comprises all persons descended from four apical persons being the late Tommy Kidd Ingkinyi, Long Paddy Jingpari, Ben Venables ‘Pinibul’ Bakajikari and Miyamaja whose descendants include:
- Dolly Yurrabunga (deceased) (adopted) who was an Aboriginal woman;
- Allan Alberts Wanggunyanu who is an Aboriginal man;
- Johnny Devlin Nungkurunyungu who is an Aboriginal man;
- Billy Dalywaters Walarnagkara who is an Aboriginal man;
- Rosie Anderson (deceased) who was an Aboriginal woman;
- Philip Anderson (deceased) who was an Aboriginal man;
- Felix Morgan (deceased) who was an Aboriginal man;
- Ashwood Morgan Anderson (deceased) who was an Aboriginal man;
- Timmy Morgan Tangkutangku who is an Aboriginal man;
- Kitty Morgan (deceased) who was an Aboriginal woman;
- Sadie Jackson (deceased) who was an Aboriginal woman;
- Bobby Campbell Wunarra (deceased) who was an Aboriginal man;
- Elizabeth/Bessie Campbell (deceased) who was an Aboriginal woman;
- Agnes Campbell Yuwangali who is an Aboriginal woman;
- Harry Campbell (deceased) who was an Aboriginal man;
- Dorothy Rankin (deceased) who was an Aboriginal woman whose children include Bronwyn, Gloria, Matthew and Elisa Rankin;
- Topsy (deceased) who was an Aboriginal woman whose children include Susan and James;
- Frank Ranch (deceased) who was an Aboriginal man whose children include Sybil, Stuart and Rickey Ranch;
- David Ranch (deceased) who was an Aboriginal man.
Native title rights in respect of the Determination Area consist of the following rights:
Rights of the estate group
(a) the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas, except water captured by the holders of Perpetual Pastoral Lease No. 1117;
(e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct and to participate in the following activities on those areas:
(i) cultural activities;
(ii) cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v) teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs;
(h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs;
(i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas;
(j) the right to be accompanied on to those areas by persons who, though not native title holders, are:
(i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas;
(ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members;
(iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas;
(k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof.
Rights of other Aboriginal people
In accordance with traditional laws and customs, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being:
(a) members of estate groups from neighbouring estates.
The individuals referred to in para (a) above have the following rights and interests:
(a) the right to travel over, to move about and to have access to those areas;
(b) the right to hunt and to fish on the land and waters of those areas;
(c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to take and to use the natural water on those areas, except water captured by the holders of Perpetual Pastoral Lease No. 1117;
(e) the right to camp on those areas;
(f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
(g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof.
The native title rights and interests are subject to and exercisable in accordance with:
- the traditional laws and customs of the native title holders for personal or communal needs which are of a domestic or subsistence nature and not for any commercial or business purpose;
- the laws of the Northern Territory of Australia and the Commonwealth of Australia.
Non-native title rights and interests that exist within the determination area:
(a) in relation to NT portion 3418, the interests of Thomas George Henry and Beverley Ellen Stockwell under Perpetual Pastoral Lease No. 1117;
(b) the rights and interests of Telstra Corporation Limited:
(i) as the owner or operator of telecommunications facilities within the Determination Area;
(ii) 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), including rights:
(A) to inspect land;
(B) to install and operate telecommunications facilities;
(C) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; and
(iii) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(iv) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area;
(c) in relation to NT portion 3418, the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in the pastoral lease, identified in ss 38(2) – (6) of the Pastoral Land Act 1992 (NT);
(d) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
(e) 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;
(f) the interests of persons to whom valid and validated rights and interests have been:
(i) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or
(ii) otherwise conferred by statute.
(g) the following interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT), depicted in Schedule E:
(i) Exploration Licence Title No. 28185 granted on 16 February 2011;
(ii) Exploration Permit Title No. 168 granted on 10 January 2013;
(iii) Exploration Permit Title No. 117 granted on 10 January 2013.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- to the extent, if at all, that the exercise of the native title rights and interests referred conflicts with the exercise of the non-native title rights and interests, the non-native title rights and interests prevail over, but do not extinguish, the native title rights and interests.
Provisions Relevant to the Native Title Rights
- Walalakoo Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders;
- The native title is held in trust for the native title holders. | | Detailed Information: | | | Background
On 8 October 2011 Timmy Morgan filed an application pursuant to the Native Title Act (1993) (Cth), seeking recognition of native title rights and interests over the land and waters within the bounds of the Sunday Creek Pastoral Lease, which is contained in Perpetual Pastoral Lease No. 1117.
It is was one of a number of applications proposed to be heard together, because they were geographically proximate. The claims were dealt with as a group, at the request of the relevant pastoralists and with the consent of the Northern Territory and of the applicants in the other claims in the group, because of that wide geographical proximity.
The successful native title claim has provided the claimants with formal recognition of approximately 400 square kilometres of land.
Details of Judgement
Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the claimants in relation to part of the land and waters covered by the claim. A signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).
The court was satisfied that a determination of native title was within the power of the court. | |
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