Braedon on behalf of the members of the family groups with responsibility for the Imarnte Estate v Northern Territory of Australia [2019] FCA 614

Rainbow Valley Conservation Reserve - south of Alice Springs

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

Between: Eric Braedon and Peter Kenny on behalf of the members of the family groups with the responsibility for the Imarnte Estate (Applicant) and Northern Territory of Australia (Respondent)

Judge: Reeves J

Determination

Native title exists in part of the determination area.

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

Native title is held by the Imarnte Native Title Claim Group.

Non-exclusive native title rights and interests that exist over the determination area described in Schedule A as the Rainbow Valley Conservation Reserve, include:

• the right to access and travel;
• the right to live, camp, erect shelters and other structures;
• the right to hunt, gather and fish;
• the right to take and use the natural water on or in the land;
• the right to light fires for domestic purposes, but not for the clearance of vegetation;
• the right to share or exchange natural resources obtained on or from the land and waters, including traditional items made from the natural resources;
• 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;
• the right to conduct cultural activities, ceremonies, meetings, and other practices relating to birth or death;
• the right to teach the physical and spiritual attributes of the area; 
• the right to make decisions about the use and enjoyment of the land and waters providing that the right does not extend to making any decisions that purport to control access from specific persons; and
• the right for persons who are not native title holders may accompany on the determination area for the purposes of performances, cultural activities and observing traditional activities. 

Native title does not exist over parts of the determination area covered by public works as defined in section 253 of the Native Title Act 1993 (Cth) (NTA) that were established or constructed on or before 23 December 1996. These include public and rural roads, community and pastoral access, gravel and fill pits, river and rain gauges, water and sewer pipes and overhead powerlines. Further, native title has been wholly extinguished in the areas of stock-proof boundary fences, ranger camp pit toilets and Bore RN 13669. See Schedule C for further information.

Other rights and interests in the determination area include:

• the interest of the Conservation Land Corporation under Crowqn Lease Perpetual No. 307;
• the interests of the Parks and Wildlife Commission in the care, control and management of the determination area pursuant to the Parks and Wildlife Commission Act 1980 (NT) and the Territory Parks and Wildlife Conservation Act 1976 (NT) (TPWC) functions and powers. Including interests in any building, works or other structures constructed or established by the Commission;
• the interest of members of the public arising from their right to access and use the Rainbow Valley Conservation Reserve pursuant to the TPWC. Subject to any statutory limitations on the exercise of the right, including under the Northern Territory Aboriginal Sacred Sites AAct 1989 (NT) (NTASS);
• the Central Land Council and Northern Territory of Australia as parties to the Rainbow Valley Framework for the Future Indigenous Land Use Agreement (DI2004/032). Parties have the rights and interest to use, access, maintain and control certain roads in the determination area;
• the interests of petroleum tenement Helium Australia Pty Ltd and Santos QNT Pty Ltd pursuant to the Petroleum Act 1984 (NT);
• The rights of Aboriginal persons regardless of having native title to use the determination area for hunting, food gathering, ceremonial/ religious purposes under section 122 of the TPWC and by virtue of NTASS; and 
• the right of the employee, agent, servant of the Northern Territory, Commonwealth of Australia to perform their statutory duties in the determination area.

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

The Wura Aboriginal Corporation (ICN: 9008) as the prescribed body corporate, is to perform functions required under the NTA and to act as the agent for the native title holders. The Imarnte Native Title Claim Group's native title is not held in trust.

Background

This native title determination application was filed on behalf of the Imarnte native title claim group by Mr Eric Bardon and Mr Peter Kenny. The application was filed according to the terms of an Indigenous Land Use Agreement entered between the Central Land Council and the Northern Territory of Australia. It covers the land and waters in the Rainbow Valley Conservation Reserve, which lies inside Orange Creek pastoral station to the south of Alice Springs in the Northern Territory. The applicant filed the application and accompanying affidavits with the Federal Court of Australia. The Registrar of the Court gave a copy of the application to the Native Title Registrar on 2 July 2018 according to section 63 of the NTA.

The claim area was declared a reserve in 1990 and then re-declared in 2002 under section 12 of the TPWC [6].

Between 2011 and 2018 the parties actively negotiated to reach an agreement regarding the terms of a consent determination over the claim area. On 22 July 2011, the Northern Territory was provided with an anthropological report and dreaming tracks map prepared by Mr Ray Wood. The state reviewed this material and within a short period, an agreement was reached by all parties covering the issues raised in the anthropological report [3]. 

On 27 November 2013, a tenure analysis was provided to the Applicant by the Northern Territory showing parts of the claim area where the native title had been extinguished. The parties quickly discussed an agreement concerning those parts of the claim area in which native title existed and those parts which it had been suppressed or no longer existed [4].

An executed consent order was provided to the Court by the parties on 26 March 2019. The parties filed a statement of agreed facts, the anthropological report of Mr Wood and joint submissions. Based on this submission, the parties requested the Court to make this determination of native title in the terms of the consent order [5].

Details of Judgement

Reeves J firstly stated "it is pleasing to see that the practice in the Northern Territory's Central Region of bringing native title matters to resolution in a timely manner has continued in this proceeding[1]. The expedient resolution of proceedings such as this is important because, all too often, senior members of the claim group pass away without witnessing the recognition of native title with respect to their traditional lands" [1]. The native title over the Rainbow Valley contains sacred sites and holds "great cultural significance" to the local Aboriginal communities (Native Title granted over Northern Territory's Rainbow Valley, 2019).

His Honour noted that the conditions specified in section 87(1) of the NTA have been met. In conclusion, his honour was satisfied that it was appropriate to recognise, by consent of the parties, that the Imarnte Estate People have long held pre-existing native title to this land [28].

Native title exists in part of the determination area.

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