Katakarinja on behalf of Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and those persons with rights and interests in the area of land and waters known as Kwerlerrethe v Northern Territory of Australia [2016] FCA 685

Katakarinja on behalf of Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and those persons with rights and interests in the area of land and waters known as Kwerlerrethe v Northern Territory of Australia [2016] FCA 685 (Narwietooma)

Between Cleophanus (Lofty) Katakarinja, Carl Inkamala, Huckitta Lynch, Rhonda Inkamala, Stewart Pareroultja, Gloria McCormack, Jean Mack and Ronnie MacNamarra on behalf of Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and those persons with rights and interests in the area of land and waters known as Kwerlerrethe (Applicants) and Northern Territory of Australia, Christopher Anthony Connellan, Anthony Woodley Davis and Pamela Ruth Davis (Respondents).

Judge Rangiah J.

Where made Cockatoo Creek and M'Bunghara outstations in central Australia.

Determination

Native title exists in part of the determination area. It consists of exclusive and non-exclusive native title rights.

Native title is held by 

(1) members of the Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups; and

(2) Aboriginal persons who have rights and interests in Kwerlerrethe (either by descent or knowledge/authority/responsibility for shared Dreaming tracks). 

Exclusive native title rights over part of the determination area (NT Portion 1607)

(a) the right to possession, occupation, use and enjoyment of the land to the exclusion of all others (except in relation to flowing and subterranean waters)

(b) the right to use flowing and subterranean waters including: (i) to hunt, gather and fish; and (ii) to take and use the waters in accordance with traditional laws and customers for personal and communal needs of the native title holders for domestic or subsistence purposes, but not for any commercial or business purpose.

Non-exclusive native title rights over part of the determination area (NT Portion 727 and part of NT Portion 4284)

(a) the right to access and travel over any part of the land and waters

(b) the right to live on the land, to camp, to erect shelters and other structures

(c) the right to hunt, gather and fish on the land and waters 

(d) the right to take and use the natural resources of the land and waters

(e) the right to access, take and use natural water on or in the land, except water captured by the holders of Perpetual Pastoral Lease No. 1019

(f) the right to light fired for domestic purposes (but not for clearing vegetation)

(g) the right to share/exchange natural resources obtain on/from the land and water, including traditional items made from the natural resources 

(h) the right to access and to maintain and protect sites and places on or in the land and waters that are important under traditional laws and customs

(i) the right to conduct and participate in cultural activities, ceremonies, meetings, practices relating to birth and death, teaching. This includes (subject to rights of persons arising under Northern Territory law) the right to be present on the land and the right to privacy in the exercise and enjoyment of the aforementioned activities.

(j) the right to speak for and make decisions about the use and enjoyment of the land and waters by Aboriginal people acknowledged by the native title holders 

(k) the right to be accompanied on the land and waters by persons who (i) are required by traditional law and custom for the performance of ceremonies or cultural activities on the land & waters (ii) have rights in relation to the land and water according to traditional laws and customs acknowledged by the native title holders (iii) are require to assist in, observe or record traditional activities on the areas. 

Non-native title rights and interests that exist within the determination area

(a) NT Portion 727 - the interests of Anthony Woodley Davis and Pamela Ruth Davis as leaseholders of Perpetual Pastoral Lease No. 1019

(b) NT Portion 727 - the interest of Paradigm Investments Pty Ltd in a sub-lease of a portion of Narwietooma Station Perpetual Pastoral Lease No. 1019 (the Mt Zeil Campground)

(c) NT Portion 1607 - rights and interests held under the Water Act 1992 (NT)

(d) NT Portion 4284 (part) - rights for use of passage of travelling stock

(e) interests of holders of mineral and petroleum tenements granted under the relevant Northern Territory law: (i) Legend International Investment Pty Ltd; (ii) Crossland Nickel Pty Ltd; and (iii) Panconoz Pty Ltd

(f) the rights and interests of Telstra Corporation Ltd (i) as owner/operator of telecommunications facilities within the determination area; and (ii) created pursuant to the Telecommunications Act 1997 (Cth); and (iii) for its employees to access the telecommunication facilities; and (iv) under any lease/licence/access agreement or easement relating to the telecommunications facilities

(g) NT Portion 727 - the rights of Aboriginal persons pursuant to the reservation in favour of Aboriginal people in pastoral leases, pursuant to ss 38(2) and (6) of the Pastoral Land Act 1992 (NT)

(h) the rights of Aboriginal persons under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT)

(i) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority to perform his/her statutory duties 

(j) interests of persons to whom rights and interests have been granted by the executive or conferred by statute.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title. 

The Wala 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 not to be held on trust for the native title holders.

Background

On 22 May 2013, the Applicant filed an application for a determination of native title over the land and waters listed below (the Determination Area). The application was filed on behalf of Western Arrernte and Anmatyerr speakers belonging to the Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and those persons with rights and interests in the area of land and waters known as the Kwerlerrethe. 

• NT Portion 727: 2,590 square kilometres held under Perpetual Pastoral Lease No. 1019
• NT Portion 1607: approximately 28 hectares located within NT Portion 1224, containing part of the channel of Dashwood Creek
• part of NT Portion 4284: 31 square kilometres located within NT Portion 727 (described above), containing part of the North West Stock Route.

The applicant and the respondents and Paradigm Investments Pty Ltd reached an agreement regarding the Determination Area, and applied to the Federal Court to make orders in accordance with the terms of this agreement.

Details of judgment 

The consent determinations were handed down at the Cockatoo Creek and M'Bunghara outstations in central Australia (Central Land Council, 2016). The Court was satisfied that the determination identified the nature and extent of the native title rights and interests in the Determination Area.

Rangiah J found that the evidence presented by the applicant (including an anthropological report) established that the Western Arrernte and Anmatyerr people are descendants of people who occupied the Determination Area prior to sovereignty and continue to hold rights and interests in it [12], [14]. This evidence included the nature and content of the rights and interests of the Western Warrernte and Anmatyerr people under their traditional laws and customs including to 'hunt game, harvest bush foods and medicines and collect wood ... following, holding and transmitting religious and secular rights, responsibilities and knowledge ... includ[ing] the holding of ceremonies' Narwietooma, [13]. The evidence also emphasised the continuity of Altyerre (dreaming stories) over generations [14]. 

Native title exists in parts of the determination area.

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