Foster on behalf of the Jalajirrpa, Kunapa and Pirrtangu Groups v Northern Territory of Australia (Banka Banka East Pastoral Lease Proceeding) [2020] FCA 1548

Registered with the National Native Title Tribunal.

Between:

Tony Foster and Others on behalf of the Jalajirrpa, Kunapa and Pirrtangu Groups (First Applicant)

Archie Allen and Others on behalf of the Kunapa, Kurtinja and Mangirriji Groups (Second Applicant)

and Northern Territory of Australia (Respondent)

Judge: White J

Determination

Native title exists in part of the determination area 

That being the land and waters subject to Perpetual Pastoral Lease No. 1204, excepting those parts of the determination area covered by public works as defined in s 253 of Native Title Act 1993 (Cth) (the NTA') (including adjacent land or waters as defined in s 251D of the NTA) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date, including but not limited to:

• public roads, whether rural roads, arterial roads or national highways; 
• community and pastoral access roads which are not otherwise public roads;
• gravel pits adjacent to the roads referred to at paragraphs (a) and (b) hereof used to maintain those roads;
• access roads or tracks to the public works referred to in this clause;
• Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads;
• river and rain gauges;
• transmission and distribution water pipes and associated infrastructure;
• sewer pipes, sewer pump stations and associated infrastructure; and
• electricity transmission lines, towers, poles and associated infrastructure. 

Native title holders

The groups that have native title rights and interests in respect of the determination Area are:

• the Jalajirrpa estate group;
• the Kunapa estate group; and
• the Pirrtangu estate group.

Other Aboriginal people also 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: 

• members of estate groups from neighbouring estates; and 
• spouses of the estate group members. 

The neighbouring estate groups referred to above include persons who are members of the group by reason of: 

• patrilineal descent;
• his or her mother, father’s mother or mother’s mother being or having been a member of the group by reason of patrilineal descent; or 
• having been adopted or incorporated into the descent relationships referred to in (a) or (b) above. 

Non-exclusive native title rights and interests over all of the determination area except for the areas excluded (see Schedule D).

These rights exist over the area described in Schedule C.  The Jalajirrpa, Kunapa and the Pirrtangu estate groups have the right: 

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

Other Aboriginal people and neighbouring estate groups described above also have the right:

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

Other rights and interests in the determination area, created by the Crown or otherwise, include:

• the rights and interests of the holder of Perpetual Pastoral Lease No. 1204, in relation to NT portion 7049;
• the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples in Perpetual Pastoral Lease No. 1204 made by s 38 of the Pastoral Land Act 1992 (NT);
• the rights of Aboriginal persons (whether or not native title holders) pursuant to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
• 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;
• the rights to water lawfully captured by the holders of other interests;
• the rights and interests of persons to whom valid and validated rights and interests have been granted by the Crown pursuant to statute, in the exercise of executive power, or otherwise conferred by statute;
• the rights and interests of the holders of the following titles granted under the Mineral Titles Act 2010 (NT) and the Petroleum Act 1984 (NT), depicted in Schedule E: >Exploration Permit Title No. 169 granted on 4 April 2013; and Exploration Licence Title No. 31665 granted on 3 August 2017.  

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 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 Pirrtangu estate groups.

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

Background  

The applications form part of a group know as the 'Banka Banka Group'. The group included applications for native title determinations over Banka Banka East, Banka Banka West, Powell Creek and Helen Springs Pastoral Leases [8]. 

The determination was made on two underlying applications for the determination of native title [2].

The principal application was made by the first applicant in December 2017 which covered all of the land and waters in the Banka Banka East Pastoral Lease [3].

An earlier application for a part of the area in Banka Banka East Pastoral Lease was made by the second applicant in 2001 [4]. This part being subject to future act notices under s 29 of the Native Title Act 1993 (Cth) [4]. In August 2020, the Court ordered that the 2017 application and 2001 application were to be dealt with together [5]. Consequently, the determination will resolve the 2017 application for the entire area covered and the 2001 application in part only. 

Details of Judgment

An agreement was made in recognition of the native title rights and interests held by Jalajirrpa, Kunapa, Pirrtangu, Kurtinja and Mangirriji Groups in relation to the Banka Banka East Pastoral Lease Proceeding. Pursuant to ss 87 and 87A of the Native Title Act 1993 (Cth) agreement was filed in the Federal Court.

Both ss 87(1A) and 87A(4) require the Court to be satisfied that it is appropriate to make the proposed determination. Given the rigorous assessment by the Northern Territory of the materials provided by the applicant the court is satisfied that Northern Territory based their consent on a sound rational basis [30]. The Court recognised that the proposed native title rights are of a kind that are recognised by the court in other determinations [31]. There is no indication to suggest that throughout the course of negotiations all parties to the agreement did not have independent legal representation [37]. The Court found no circumstances under which making the determination in accordance with the proposed terms would be inappropriate [36]. The Court was satisfied it was appropriate to give effect to the parties' agreement in recognition of the native title rights and interests of the estate groups [40-41].

Native title exists in parts of the determination area.

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