| McDinny v Northern Territory of Australia [2015] FCA 1239
Between:
BENJAMIN MCDINNY , JEMIMA MILLER, ANDREW DAVEY, ASMAN RORY, NELSON HOGAN, RODDY HARVEY, JOHN FINLAY AND ROBERT ANDERSON ON BEHALF OF THE WUPUNJAWA-MARRINYBUL, RRUWANGKALA-WARDAWARDALA, KALAJANGKU, WEARYAN RIVER MAMBALIYA, POISON CREEK, FLETCHER CREEK, MARUWANMALA, WILYURRU-RABUNTHU, MANANKURRA-NUNGKAYARRINYA AND LIWIRNDINDILA-KALALAGINDA ESTATE GROUPS (applicants);
and
NORTHERN TERRITORY OF AUSTRALIA, ARMOUR ENERGY LIMITED and STEPHEN COLESTER ANDERSON, ROBERT LUIS ANDERSON, BILL GORDON ANDERSON, ALEX ANDERSON (JNR), ALFRED ANDERSON, PETER ANDERSON, LINDY ANDERSON AND LOGAN ANDERSON (respondents).
Judge: Mansfield J
Where made: Borroloola
Determination:
Native title exists in parts of the determination area. It consists of areas of exclusive native title rights and areas of non-exclusive native title rights.
Native title is held by the following estate groups:
- Wupunjawa-Marrinybul (Mambaliya);
- Rruwangkala-Wardawardala (Mambaliya);
- Kalajangku (Mambaliya);
- Wearyan River (Mambaliya);
- Poison Creek (Wurdaliya);
- Fletcher Creek (Wuyaliya);
- Maruwanmala (Wuyaliya);
- Wilyurru-Rabunthu (Wuyaliya);
- Manankurra-Nungkayarrinya (Rrumburriya); and
- Liwirndindila-Kalalaginda (Wurdaliya).
Exclusive native title rights: Rights in relation to Pastoral Lease No. 685
The native title holders (from the estate groups referred to above) have to the following native title rights and interests:
- except in relation to flowing and subterranean waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others;
- in relation to flowing and subterranean waters, the right to use those waters including the right to:
(i) hunt on, gather, and fish from; and
(ii) take and use;
the flowing and subterranean waters in accordance with their traditional laws and customs for personal and communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose.
Non-exclusive native title rights: Rights in relation to part of NT Portion 4263 that is bounded by NT Portion 812
Rights of the estate groups
The native title holders (from the estate groups referred to above) have to the following native title rights and interests:
- the right to travel over, to move about and to have access to those areas;
- the right to hunt and to fish on the land and waters of those areas;
- the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
- the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Pastoral Lease No. 685;
- the right to live, to camp and for that purpose to erect shelters and other structures on those areas;
- the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
- 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;
- 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;
- 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;
- the right to conduct activities necessary to give effect to the rights referred to above
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;
(b) spouses of the estate group members.
The individuals referred to in paras (a) and (b) above have the following rights and interests:
- the right to travel over, to move about and to have access to those areas;
- the right to hunt and to fish on the land and waters of those areas;
- the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin;
- the right to take and to use the natural water on those areas, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of Pastoral Lease No. 685;
- the right to camp on those areas;
- the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation;
- the right to conduct activities necessary to give effect to the rights referred to
The non-exclusive native title rights and interests do not confer on the native title holders possession, occupation, use and enjoyment of part of NT Portion 4263 that is bounded by NT Portion 812 to the exclusion of all others.
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
There are no native title rights in or in relation to:
- minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT));
- petroleum (as defined in s 5 of the Petroleum Act (NT));
- prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)),
in the Determination Area.
Non-native title rights and interests that exist within the determination area:
The nature and extent of other interests in relation to the Determination Area are the interests, created by the Crown or otherwise, as follows:
1. in relation to NT Portion 812, the interests of Stephen Colester Anderson, Robert Luis Anderson, Bill Gordon Anderson, Alex Anderson (Jnr), Alfred Anderson, Peter Anderson, Lindy Anderson and Logan Anderson as holders of Pastoral Lease No. 685;
2. in relation to part NT Portion 4263, valid rights of use for the passage of travelling stock;
3. the rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) 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:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties;
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area;
4. the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in Pastoral Lease No. 685 and ss 38(2) – (6) of the Pastoral Land Act (NT);
5. the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act (NT);
6. rights and interests held by reason of the force and operation of the Water Act (NT);
7. existing rights of the public for access and enjoyment pursuant to s13 Validation (Native Title) Act (NT) in relation to:
(a) waterways;
(b) beds and banks of foreshores or waterways;
(c) coastal waters;
(d) beaches;
(e) areas that were public places at the end of 31 December 1993;
8. 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;
9. the interests of persons to whom valid and validated rights and interests have been:
(a) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or
(b) otherwise conferred by statute;
10. the following interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT), depicted in Schedule E:
(a) Exploration Licence Title No. 26539 granted on 1 August 2008;
(b) Exploration Licence Title No. 26556 granted on 1 September 2008;
(c) Exploration Licence Title No. 26557 granted on 1 September 2008;
(d) Exploration Permit Title No. 174 granted on 11 December 2012;
(e) Exploration Permit Title No. 176 granted on 29 June 2011;
(fi) Exploration Permit Title No. 190 granted on 11 December 2012;
11. the rights and interests of the parties under the following agreements:
(a) Co-existence and Exploration Deed for Exploration Permit Title No. 171 and Exploration Permit Title No. 176 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 22 June 2011;
(b) Co-existence and Exploration Deed for Exploration Permit Title No. 174 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012;
(c) Co-existence and Exploration Deed for Exploration Permit Title No. 190 between Armour Energy Limited, the Native Title Parties and the Northern Land Council dated 19 November 2012.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- the enjoyment and exercise of the native title rights and interests described in clause 9(a) are partly inconsistent with Pastoral Lease No. 685 such that the native title rights and interests described in clause 9(a) continue to exist in their entirety but have no effect in relation to Pastoral Lease No. 685;
- if Pastoral Lease No. 685 or its effects are wholly removed or otherwise wholly cease to operate over any part of NT Portion 812, the native title rights described in cl 9(a) again have full effect to that extent;
- to the extent, if at all, that the exercise of the native title rights and interests referred to in clauses 9, 10 and 11 conflicts with the exercise of the rights and interests of the persons referred to in clause 15 prevail over, but do not extinguish, the native title rights and interests referred to in clauses 9, 10 and 11.
Provisions relevant to the Native Title rights:
- the Top End (Default PBC/CLA) Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;
- native title is not to be held in trust. |
McDinny v Northern Territory of Australia [2015] FCA 1239 - Schedule B Map of Determination Area - ( 
McDinny v Northern Territory of Australia [2015] FCA 1239 - Consent Determination Extract - (