Coleman on behalf of the Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar Groups v Northern Territory of Australia [2019] FCA 477

Pine Creek, Katherine region

The Determination Area comprises all the land and waters within the external boundaries of the Town of Pine Creek in the Katherine region. It is an area of approximately 12.5 square kilometres and is identified in the map which is Schedule B to the Determination. For a detailed description of the area and map see Schedule C and B of the Determination, attached below under documents. The area is within the jurisdiction of the Victoria Daly Regional Council.

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Bessie Coleman and three others on behalf of the Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar groups (Applicant) and Northern Territory of Australia, Telstra Corporation Limited and Newmarket Gold NT Holdings Pty Ltd (Respondents)

Judge: White J

Determination

Native title exists in parts of the determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Native title is held by the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group.

Exclusive native title rights and interests over part of the determination area

These are the rights to possession, occupation, use and enjoyment over the area described in Schedule C Item 1(a), to the exclusion of all others.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the areas described in Schedule C Item 1(b) and 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 on the areas

These rights also belong to other Aboriginal people referred to in Order 10, in relation to the areas described in Schedule Items C 1(a) and (b):

• to access, remain on and use the areas; and
• to access the resources of the areas.

In relation to Lots 147 and 153 only, the native title rights and interests do not confer on the native title holders any right:

• to camp on those areas; or
• to light fires on those areas.

Where native title does not exist

Native title does not exist in those parts of the determination area identified in Schedule D.

There are no native title rights and interests in:

• 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).

Other rights and interests in the determination area include:

• the rights of Telstra Corporation Limited created under the Post and Telegraph Act 1901 (Cth), and exercised under 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 Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• the rights of access by an employee, servant, agent or instrumentality of the Northern Territory or the Commonwealth, or other statutory authority as required in the performance of statutory duties;
• the rights of any employee, servant, agent or instrumentality of the Northern Territory in relation to the drainage easement over part Lots 171 and 172 as depicted on Survey Plan S83/164;
• the rights of the Power and Water Corporation, its employees, agents or contractors in relation to the sewerage easements described in Schedule E (e);
• rights and interests held by reason of the Water Act (NT);
• the interests of persons to whom valid and validated rights and interests have been granted by the Crown in the exercise of executive power; or otherwise conferred by statute;
• the rights and interests of the holders of the mining titles described in Schedule E (h)

See Schedule E for further information about the non-native title rights and interests.

Relationship between native title rights and other interests

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

The non-extinguishment principle under the Native Title Act 1993 (Cth) applies to the Alice Springs Darwin Railway validly constructed on Lots 307, 308 and 310. This means that any activivities that are inconsistent with native title rights and interests do not extinguish those rights and interests. Instead those rights and interests will be revved when the activities are finished.

Prescribed body corporate

The Top End (Default PBC/CLA) Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as agent for the Wagiman group and the Jawoyn Bolmo, Matjba and Wurrkbarbar group. The native title is not held on trust for the native title holders.

Full text of the determination is available via the URL link above.

Background

In 1999, the parties entered into negotiations to recognise native title (James 2019). On 29 May 2018, the applicant filed an application for the determination of native title on behalf of the Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar groups in respect of the area of the Town of Pine Creek in the Northern Territory. On 9 April 2019, the Federal Court recognised that native title exists in some parts of the claim area, but that it has been extinguished in respect of many allotments, either wholly or partly. The recognition of native title in parts of the area has been described as ‘the strongest form of native title over most of Pine Creek’ (James 2019). This is because exclusive native title gives the native title holders the same rights as private land owners (James 2019). Since the closure of the Frances Creek iron ore mine in 2014, the town’s main employer, Pine Creek’s population has shrunk and local businesses have closed (James 2019). The recognition of native title in Pine Creek has facilitated discussions around how native title holders can use the land (James 2019). Bessie Coleman says, “We’ll probably start our own business” (James 2019).

Details of Judgment

The parties reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area [2]. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) [5]. The Court was satisfied that a determination of native title was within the power of the Court [6].

Native title exists in parts of the determination area.

Related Entries

References

Documents

Glossary