Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908

Between: Annie Isaac and Dinah Norman (on behalf of the Rrumburriya Borroloola Group) (APPLICANTS) and Northern Territory of Australia and the Commonwealth of Australia (RESPONDENTS)

Between: Wendy Roper, Gordon Lansen, Phillip Timothy, Graham Friday and Mavis Timothy (on behalf of the Rrumburriya Borroloola Group) (APPLICANTS) and Northern Territory of Australia, Commonwealth of Australia Borrolola Amateur Race Club Inc, Borroloola Community Government Council and Air Services Australia (RESPONDENTS)

Judge: Mansfield J

Where made: Northern Territory

Determination:

Native title exists in parts of the determination area.

It consists of non-exclusive native title rights.

Native title is held by the Rrumburriya Borroloola People.

The exclusive native title rights over part of the determination area consist of:

- rights to uphold traditional laws and customs as well as rights of possession, occupation, use and enjoyment as against the whole world. This includes the right to access, remain on and use the areas and to access the resources of the area by other Aboriginal people apart from the Rrumburriya Borroloola group.

The non-exclusive native title rights of the non-exclusive areas include:

- the right to access, remain on and use the areas; - the right to access and to take for any purpose the resources of the areas; and - the right to protect places, areas and things of traditional significance in the areas.

This includes the right to access, remain on and use the areas and to access the resources of the area by other Aboriginal people apart from the Rrumburriya Borroloola group by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).

Both exclusive and non-exclusive native title rights and interests are subject to and exercisable in accordance with the laws of the Northern Territory, the Commonwealth, the common law and the traditional laws and customs of the native title holders.

Non-native title rights and interests that exist in the determination area include:

- 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)); - the rights of Telstra Corporation Limited as the owner or operator of telecommunications facilities installed within the determination area under 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 an employee, servant, agent or instrumentality of the Nothern Territory or Commonwealth or other statutory authority as required in the performance of statutory duties; - the rights of Power and Water Corporation, its employees, agents or contractors in relation to maintaining the areas; and - rights and interests held by reason of the force and operation of the Water Act (NT).

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 RNTBC as the prescribed agent 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 not held on trust for the native title holders.

Background:

Two claims over lands and waters around the Town of Borroloola were heard together by Mansfield J on behalf of the Rrumburriya Borroloola Group in this determination.

The Northern Territory and the Commonwealth contested. 

This case follows on from Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776 where Mansfield J dealt with two issues.

In this present determination, Mansfield J firstly held that the acknowledged rights included the right to use resources for commercial purposes (Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908 at para 2).

Secondly, the parties had to come to an agreement about extinguishment of native title. The parties came to an agreement meaning the order recognises the Rrumburriya Borroloola claim group, as the holders of the native title rights and interests in the Town of Borroloola (Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908 at para 6).

In effect, the decision gives the Rrumburriya group the rights to trade over a land area of '2797 acres within the township boundary of Borrolla where there is no existing government or business infrastructure' (Bardon 2016).

The group's non-exclusive rights apply to those areas where there is existing infrastructure (Bardon 2016).

The determination gives the Rrumburriya group essentially the same rights as residents and business owners with the exception of the rights to minerals, petroleum, gas and other resources claimed by the government.

The decision was the first of its type in the Northern Territory and was highly praised by the Northern Land Council (Bardon 2016).

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 [People] in relation to the part of the land and waters covered by the [name] Application. The signed agreement 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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