Morrison on behalf of Kunapa, Kangawarla, Kanturrpa, Marntikara, Ngarrka and Pirrtangu Groups v Northern Territory of Australia (Banka Banka West Pastoral Lease Proceeding) [2020] FCA 1549

North of Tennant Creek 

The determination area is approximately 1,450 square km, located north of Tennant Creek and intersected by the Stuart Highway. For a detailed description of the area and maps see Schedule A and B of the determination, attached below under documents. The area is within the jurisdiction of the Barkly Regional Council.

Registered on the National Native Title Register.

Between: 

Harry Morrison and others named in Schedule F on behalf of the Kunapa, Kangawarla, Kanturrpa, Marntikara, Ngarrka and Pirrtangu Groups (First Applicant)

Archie Allen and others named in Schedule F on behalf of the Kunapa, Kurtinja and Mangirriji peoples (Second Applicant)

and Northern Territory of Australia and others named in Schedule F (Respondents).

Judge: White J.

Determination

Native title exists in part of the determination area

It consists of exclusive and non-exclusive native title rights and interests in NT Portion 7048, 5677, 5679 and 5156. Native title rights and interests have been wholly extinguished in NT Portion 624 and those parts of the determination area covered by public works.

Native title holders

The Kanturrpa, Marntikara, Kunapa, Kangawarla, Ngarrka, and Pirrtangu estate groups; and 'other Aboriginal people' who are:

(a) members of neighbouring estate groups; and

(b) spouses of the estate group members 

subject to the native title rights and interests of the estate group members.

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

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule C1, to the exclusion of all others. Including the right to access and to take for any purpose the resources of those areas.

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

These rights exist over the area described in Schedule C2 and include the right to:

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

These rights do not include:

• possession, occupation, use and enjoyment to the exclusion of all others;
• control of the access to and use of land and waters of the areas or their resources; and
• any right to access or take resources that are the private or personal property of another.

'Other Aboriginal people', as defined above, are restricted to possessing the following rights and interests over the area described in Schedules C1 and C2:

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

There are no native title rights and interests in:

• minerals;
• petroleum;
• 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).

See Schedule D for areas where native title does not exist.

Other rights and interests in the determination area include:

• in relation to NT Portion 7048, the rights and interests of the holder of Pastoral Lease No. 1203;
• in relation to part of NT Portion 5156, valid rights of use for the passage of travelling stock;
• the rights of the proprietors of NT Portion 1422 pursuant to the access easement across NT Portion 7048;
• the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal peoples in Pastoral Lease No. 1203;
• 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;
• 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, or otherwise conferred by statute;
• the rights and interests of holders of exploration and mining leases depicted in Schedule E.

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

The Top End 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 the agent for the Kunapa, Kangawarla, Kanturrpa, Marntikara, Ngarrka and Pirrtangu Groups.

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

Background

The determination was made over two applications for determination of native title. The principal application made in 2017 covered all the land and waters within the Banka Banka West Pastoral Lease. An earlier application in 2001 included part of the area of the Banka Banka West Pastoral Lease. On 11 August 2020 the Court ordered that the 2017 application and that part of the 2001 application which covered part of the Banka Banka West Pastoral Lease be dealt with together.

The applications form part of a group of applications known as the "Banka Banka Group". The group includes applications for determinations of native title over the Banka Banka East, Powell Creek and Helen Springs Pastoral Leases.

Details of Judgment

After negotiation, agreement was reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Kunapa, Kangawarla, Kanturrpa, Marntikara, Ngarrka and Pirrtangu Groups in relation to the Banka Banka West Pastoral Lease Proceeding. The signed agreement was then filed in the Federal Court pursuant to ss 87 and 87A of the Native Title Act 1993 (Cth).

Both s 87(1A) and s 87A(4) require that the Court be satisfied that it is appropriate to make the proposed determination. The court considered that there was a 'sound rational basis' for the consent of the Northern Territory to the determination [31]. The court could not identify any circumstances which would make the determination inappropriate and was satisfied that both parties had received legal representation [38]. Consequently, the court found that it was appropriate to give effect to the parties agreement and recognise the native title rights and interests of the estate holders [41]-[42].

Native title exists in parts of the determination area.

Related Entries

References

Documents

Glossary