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Ngajapa v Northern Territory of Australia | | Date: | 26 November 2015 | | | Sub Category: | Consent Determination (Native Title Act) | | Place: | Located in the local government area of Roper Gulf Shire | | State/Country: | Northern Territory, Australia | | The determination area is outlined in Schedule A. It covers an area north, west and south west of Borroloola in the Northern Territory, situated in the vicinity of the Queensland border. | | | | Legal Status: | Registered on the National Native Title Register. | | | Legal Reference: | Tribunal file no.: DCD2015/008; Federal Court file no.: NTD17/2014. | | | Alternative Names: | McArthur River Pastoral Lease
| | Subject Matter: | Native Title | | Summary Information: | | | Ngajapa v Northern Territory of Australia [2015] FCA
Between:
BILLY COOLIBAH RAPSIN NGAJAPA & OTHERS ON BEHALF OF THE THE KAMANJA (WUYALIYA), NGURRMU-JAWUMA (RRUMBURRIYA), PUPUWINA (RRUMBURRIYA), MANGURRUNGURRU / WULKUWULKU (WUYALIYA), MAWULI ((WUYALIYA), WURRUWIJI (WURDALIYA), JIRRINMINI (MAMBALIYA), GULPALYI (WURDALIYA), GARAMBARINI (WURDALIYA), GULAURRUNA (RRUMBURRIYA) AND WARRGI (WUYALIYA) ESTATE GROUPS; (applicants) and
NORTHERN TERRITORY OF AUSTRALIA, ARMOUR ENERGY LIMITED, COMMONWEALTH OF AUSTRALIA, TELSTRA CORPORATION LIMITED, MOUNT ISA MINES LIMITED AND RIPPLE RESOURCES LIMITED (respondents).
Judge: Mansfield J
Where made: Borroloola
Determination:
Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
Native title is held by the following estate groups:
- Kamanja (Wuyaliya) estate group
- Ngurrmu / Jawuma (Rrumburriya) estate group
- Pupuwina (Rrumburriya) estate group
- Mangurrungurru / Wulkuwulku (Wuyaliya) estate group
- Mawuli (Wuyaliya) estate group
- Wurruwiji (Wurdaliya) estate group
- Jirrinmini (Mambaliya) estate group
- Gulpalyi (Wurdaliya) estate group
- Garambarini (Wurdaliya) estate group
- Gulaurruna (Rrumburriya) estate group
- Warrgi (Wuyaliya) estate group
Native title rights in respect of the Determination Area consist of the following rights:
Rights of the estate groups
- 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 Perpetual Pastoral Lease No. 1051;
- 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;
- 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. 1051;
- 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 above.
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:
(a) the interests of Mount Isa Mines Limited under Perpetual Pastoral Lease No. 1051;
(b) the Automatic Weather Station located within the external boundaries of the McArthur River Mine Airport on Perpetual Pastoral Lease No. 1051;
(c) the interests of the Parks and Wildlife Commission of the Northern Territory in respect of the Caranbarini Conservation Zone comprising Administrative Parcel NT Portion 5921A pursuant to the Territory Parks and Wildlife Conservation Act (NT);
(d) 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; and
(C) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(iii) 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;
(iv) under any lease, license, access agreement or easement relating to its telecommunications facilities in the Determination Area;
(v) as the owner and operator of the McArthur River Optical Fibre Repeater and to occupy the 10m by 10m area of land that has its centre point at 182162.500 N, 156354.000 E, and which contains the McArthur River Optical Fibre Repeater facility and associated telecommunications infrastructure;
(e) the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples contained in Perpetual Pastoral Lease No. 1051 and ss 38(2) of the Pastoral Land Act (NT);
(f) the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act (NT);
(g) 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;
(h) 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;
(i) the following interests granted under the Mineral Titles Act (NT) and the Petroleum Act (NT), depicted in Schedule E:
(i) Exploration Licence Title No. 26833 granted on 9 June 2009;
(ii) Exploration Licence Title No. 28659 granted on 27 October 2011;
(iii) Exploration Licence Title No. 25313 granted on 28 May 2007;
(iv) Exploration Licence Title No. 26831 granted on 9 June 2009;
(v) Exploration Licence Title No. 30156 granted on 9 June 2009;
(vi) Exploration Licence Title No. 28508 granted on 20 July 2011;
(vii) Exploration Licence Title No. 28656 granted on 27 October 2011;
(viii) Exploration Licence Title No. 28657 granted on 27 October 2011;
(ix) Exploration Licence Title No. 30080 granted on 9 May 2014;
(x) Exploration Licence Title No. 26406 granted on 18 June 2008;
(xi) Exploration Licence Title No. 28528 granted on 7 December 2012;
(xii) Exploration Licence Title No. 30302 granted on 9 June 2009;
(xiii)Exploration Licence Title No. 30736 granted on 21 August 2015;
(xiv) Exploration Licence Title No. 30077 granted on 9 May 2014;
(xv) Exploration Licence Title No. 27711 granted on 9 July 2010;
(xvi) Exploration Licence Title No. 30085 granted on 11 April 2014;
(xvii) Exploration Licence Title No. 27750 granted on 20 September 2010;
(xviii) Exploration Licence Title No. 30775 granted on 21 August 2015;
(xix) Exploration Licence Title No. 30774 granted on 21 August 2015;
(xx) Exploration Licence Title No. 30076 granted on 9 May 2014;
(xxi) Exploration Licence Title No. 29487 granted on 7 December 2012;
(xxii) Exploration Licence Title No. 26397 granted on 26 March 2008;
(xxiii) Exploration Licence Title No. 30776 granted on 21 August 2015;
(xxiv) Exploration Licence Title No. 30737 granted on 21 August 2015;
(xxv) Exploration Licence Title No. 29021 granted on 3 August 2012;
(xxvi) Exploration Licence Title No. 24401 granted on 3 June 2005;
(xxvii) Exploration Licence Title No. 30494 granted on 8 April 2015;
(xxviii) Exploration Licence Title No. 25467 granted on 15 August 2007;
(xxix) Exploration Licence Title No. 10316 granted on 22 July 2002;
(xxx) Exploration Licence Title No. 27541 granted on 24 March 2010;
(xxxi) Exploration Licence Title No. 28006 granted on 2 November 2010;
(xxxii) Exploration Licence Title No. 28951 granted on 7 March 2012;
(xxxiii) Exploration Licence Title No. 28952 granted on 7 March 2012;
(xxxiv) Exploration Licence Title No. 28007 granted on 2 November 2010;
(xxxv) Exploration Licence Title No. 30042 granted on 14 October 2013;
(xxxvi) Exploration Licence Title No. 29951 granted on 21 November 2013;
(xxxvii) Exploration Licence Title No. 29290 granted on 10 September 2012;
(xxxviii) Exploration Licence Title No. 29955 granted on 21 November 2013;
(xxxix) Exploration Licence Title No. 26944 granted on 30 April 2009;
(xl) Exploration Licence Title No. 10189 granted on 23 July 2002;
(xli) Exploration Licence Title No. 30752 granted on 21 August 2015;
(xlii) Exploration Licence Title No. 29837 granted on 27 August 2013;
(xliii) Exploration Licence Title No. 29952 granted on 21 November 2013;
(xliv) Exploration Licence Title No. 29953 granted on 14 February 2014;
(xlv) Exploration Licence Title No. 30751 granted on 21 August 2015;
(xlvi) Exploration Licence Title No. 30750 granted on 21 August 2015;
(xlvii) Exploration Permit Title No. 184 granted on 21 August 2013;
(xlviii) Exploration Permit Title No. 171 granted on 29 June 2011;
(xlix) Exploration Permit Title No. 190 granted on 11 December 2012;
(l) Exploration Permit Title No. 176 granted on 29 June 2011;
(j) the rights and interests of Mount Isa Mines Limited under Mineral Lease Numbers 1121 to 1126 inclusive granted under s 4A of the McArthur River Project Agreement Ratification Act (NT) to which the non-extinguishment principle applies pursuant to s 46 of the Act;
(k) the rights and interests of the parties under the McArthur River Project Agreement between the Northern Territory of Australia and Mt Isa Mines Limited dated 25 November 1992 and included as Schedule 1 to the McArthur River Project Agreement Ratification Act (NT);
(l) the rights and interests of the parties under the following agreements:
(i) 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;
(ii) 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 are partly inconsistent with the non-native title rights and interests such that the native title rights and interests continue to exist in their entirety but have no effect in relation to the non-native title interests to the extent of any inconsistency;
- if the non-native title interests or their effects are wholly removed or otherwise wholly cease to operate over any part of NT Portion 4319, the native title rights again have full effect to that extent;
- 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:
- the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC, 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 for the native title holders. | | Detailed Information: | | | Background
The native title application was first made on 13 June 2014, seeking recognition of native title rights and interests over the land and waters within the bounds of the McArthur River Pastoral Lease (Perpetual Pastoral Lease No. 1051). It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the estate groups as the holders of native title rights and interests over their country.
There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the claim.
It is one of a number of applications proposed to be heard together, because they are geographically proximate.
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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Ngajapa v Northern Territory of Australia - Consent Determination Extract - (