Background On 25 May 2015, the Narrwan, Ngayirrirni and Kinbininggu Estate Groups first made a native title determination application over the land and waters within the bounds of the Buchanan Downs Pastoral Lease. On 7 April 2020, they filed an amended application with the consent of the parties and leave of the Court. The parties, including Anthea Henwood, who is the holder of the Pastoral Lease, reached agreement and applied under section 87 of the Native Title Act 1993 (Cth) for a determination of native title by consent. On 29 October 2020, the matter was heard together with the Hidden Valley application as determined in Dixon on behalf of the Narrwan and Badpa Estate Groups v Northern Territory of Australia [2020] FCA 1545. This was due to their simultaneous filing and geographical proximity. Although similar, each judgment was written separately. Ultimately, White J gave effect to the parties' agreements and thereby recognised native title in the area described by Schedule C. The Court determined that it was appropriate to recognise the native title rights and interests of the Narrwan, Ngayirrirni and Kinbininggu Estate Groups after consideration of the circumstances of the agreement. In the aftermath of the determination, native title holder and applicant Raymond Dimakarra Dixon commented: 'It makes us proud of who we are. It's been a long journey for my people and that country has always been in our hearts and we're going to cherish it and pass it on to the next generations' (Robinson 2020). Northern Land Council CEO Marion Scrymgour drew attention to the recognition of the native title right to take resources and use them for any purpose. He said this was “recognition that native title holders had a functional economy – based on traditional rights and responsibilities at the time that this country was settled. It is important that the Court is recognising what Aboriginal people have always known - that there was a customary economy in place, which is being recognised in contemporary times.” (Northern Land Council 2020). Details of Judgment White J found that all matters under section 87 of the Native Title Act 1993 (Cth) were satisfied. White J emphasised that the role of the Court under section 87 was to consider the fairness of the parties' agreement having regard to the involvement of the State or Territory in the agreement. His Honour found this case an example of good practice: - 'There is also no difficulty in concluding that, during the long period during which the proceedings have been on foot, the Territory has engaged in a careful assessment of the evidence provided by the applicant in support of the application; that all parties, having been legally represented throughout; that the parties have reached their agreement on a free and informed basis; that the decision of the Territory to consent to the determination is sound and rational; and there are no “negative” factors indicating that the determination may be inappropriate. On the contrary, the materials provided by the parties indicate the appropriateness of the consent determination' [15].
His Honour then adhered to matters under section 225 of the Native Title Act 1993 (Cth). In doing so, His Honour listed the native title holders, the nature and extent of their rights, the nature and extent of any other interests in the determination area, and the relationship between the sets of rights. White J was satisfied that a determination of native title was within the power of the Court and gave effect to the parties' agreement. His Honour made orders in the terms proposed by the parties. In his closing remarks, White J emphasised that the Court does not grant native title. Instead, 'the Court’s order is a formal recognition that the native title rights and interests of the estate groups exist, and have always existed, at least since European settlement' [26]. |