Griffiths v Northern Territory of Australia (No 2)

[2006] FCA 1155

FEDERAL COURT OF AUSTRALIA

Griffiths v Northern Territory of Australia (No 2) [2006] FCA 1155

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6016 OF 1999

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6008 OF 2000

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA, COMMONWEALTH OF AUSTRALIA and AMATEUR FISHERMAN’S ASSOCIATION OF NORTHERN TERRITORY
NTD6012 OF 2000

WEINBERG J
28 AUGUST 2006
DARWIN

Table of Corrections
20 April 2016	Order 12(b) and (c) amended pursuant to Orders of Mansfield J of 20 April 2016 in proceedings numbered NTD 6016 of 1999
20 April 2016	Order 13(c) amended Pursuant to Orders of Mansfield J of 20 April 2016 in NTD 6016 of 1999
20 April 2016	Schedule A parts (a) and (b) amended pursuant to Orders of the Full Court in NTD 16 of 2006 of 21 December 2007 and of Mansfield J of 20 April 2016 in and NTD 6016 of 1999.
20 April 2016	Schedule B amended pursuant to Orders of Mansfield J of 20 April 2016 in NTD 6016 of 1999

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD6016 OF 1999

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Applicants

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

NTD6008 OF 2000

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Applicants

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

NTD6012 OF 2000

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Applicants

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

AMATEUR FISHERMAN’S ASSOCIATION OF NORTHERN TERRITORY
Third Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	28 AUGUST 2006
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.There be a determination of native title in terms of the determination set out below.

2.The native title is not to be held in trust.

3.An Aboriginal Corporation whose name is to be provided within 12 months, or such further time as a Judge of the Court may allow, is to:

(a)be the prescribed body corporate for purposes of s 57(2) of the Native Title Act 1993 (Cth) (“the Act”);

(b)perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.

4.Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Act or otherwise to be served on the common law holders may be served upon the Northern Land Council, and such service shall be deemed to be sufficient.

5.No order as to costs.

AND THE COURT DECLARES THAT:

6.In respect of land and waters referred to in paragraph 1 of the Determination, the application is not "finalised" within the meaning of s 190(4)(e) of the Act until a prescribed body corporate has been determined, in accordance with s 57(2) of the Native Title Act, to perform the functions mentioned in s 57(3) of the Act.

THE COURT DETERMINES THAT:

Existence of native title (s 225)

1.Native title exists in the areas of land and waters described in the schedule A (“the determination area”).

2.The land and waters described in schedule B are the subject of a previous exclusive possession act under s 23B of the Act, such acts being expressly excluded from the area covered by the native title determination application, and thus are not claimed in the application and are not part of the determination area.

The native title holders (s 225(a))

3.The determination area comprises the whole or part of five estates, which are held respectively by the members of the following five estate groups:

(a)the Makalamayi estate group;

(b)the Wunjaiyi estate group;

(c)the Yanturi estate group;

(d)the Wantawul estate group;

(e)the Maiyalaniwung estate group;

These persons are collectively referred to as ‘the estate group members’.

4.Each of the estate groups referred to in clause 3 hereof includes Ngaliwurru and Nungali persons who are members of the relevant estate group by reason of:

(a)        descent through his or her:

(i)father’s father;

(ii)mother’s father;

(iii)father’s mother;

(iv)mother’s mother; or

(b)having been adopted or incorporated into the descent relationships referred to in (a) hereof.

The native title rights and interests (s 225(b) and 225(e))

5.The native title rights and interests of the estate group members in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:

(a)        the right to travel over, move about and to have access to the determination area;

(b)        the right to hunt, fish and forage on the determination area;

(c)the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d)the right to have access to and use the natural water of the determination area;

(e)the right to live on the land, to camp, to erect shelters and other structures;

(f)the right to:

(i)        engage in cultural activities;

(ii)       conduct ceremonies;

(iii)hold meetings;

(iv)teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and

(v)participate in cultural practices relating to birth and death, including burial rights.

(g)the right to have access to, maintain and protect sites of significance on the determination area;

(h)the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes);

6.The native title rights and interests in clause 5 hereof do not confer on the estate group members possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

7.In accordance with traditional laws and customs, other Aboriginal people have rights in respect of the land and waters of an estate which is not their own, such people being:

(a)        members of estate groups from neighbouring estates;

(b)        spouses of the estate group members; and

(c)        members of other estate groups with ritual authority.

8.The native title rights and interests of the persons referred to in clause 7 hereof in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:

(a)in relation to members of estate groups from neighbouring estates - rights of access to, and rights to hunt, fish and gather the natural resources on the land and waters of their neighbouring estate group members;

(b)in relation to spouses of estate group members - rights of access to, and to hunt, fish and gather the natural resources on, the land and waters of their spouse's estate;

(c)in relation to members of other estate groups who hold ritual authority - rights to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites associated with travels of an ancestral being associated with a Dreaming which passes through the estates in the determination area.

9.The native title rights and interests in clause 8 hereof do not confer on the other Aboriginal people in clause 7 hereof possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

10.The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia:

11.There are no native title rights and interests in relation to:

(a)minerals (as defined in s. 2 of the Minerals (Acquisition) Act (NT));

(b)petroleum (as defined in s. 5 of the Petroleum Act (NT));

(c)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 interests (s225(c))

12.The nature and extent of other interests in relation to the determination area are the interests, created or recognised by the Crown, statute or common law , as follows:

(a)rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;

(b)any interest of members of the public to the access and enjoyment (subject to the laws of the Northern Territory and the Commonwealth) of:

(i)the waters of Timber Creek; 

(ii)beds and banks of Timber Creek; and

(c)the interests of the Conservation Land Corporation under Special Purposes Lease 494 in relation to Lot 16.

13.To clarify any doubt:

(a)to the extent, if at all, that the exercise of the native title rights and interests referred to herein conflicts with the exercise of the rights and interests of the persons referred to in clause 12(a), the rights and interests of the persons referred to in clause 12(a) prevail over, but do not extinguish, the native title rights;

(b)the native title rights and interests referred to herein coexist with the rights and interests of the persons referred to in clause 12(b); and

(c)the non-extinguishment principle applies to the grant of Special Purposes Lease 494.

Definitions and interpretation:

14.In the Determination, unless the contrary intention appears ‘land’ and ‘waters’ respectively have the same meanings as in the Act.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Schedule A

Determination Area

(a)Those lots within the Town of Timber Creek (as notified in the Northern Territory Government Gazette No 24, 20 June 1975) and allocated the following numbers: 1, 2, 3, 4, 5, 6, 7, 8, 9,  47, 56, 57, 65, 66, 67, 68, 69, that part of lot 70 not covered by the public works referred to in Schedule B, 71, that part of lot 72 not covered by the public works referred to in Schedule B, 73, 74, 80, 87, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114 and depicted on the following map.

(b)Lots 33, 35, 37 and that part of Lot 16 not covered by Miscellaneous Lease 82 granted on 28 August 1922 and the creek named Timber Creek (including its beds and banks) as it flows within the boundaries of the Town of Timber Creek (as notified in the Northern Territory Government Gazette No 24, 20 June 1975) and depicted on the following map.

Schedule A

Determination Area

[Map of determination area]

Schedule B

(Areas the subject of previous exclusive possession acts under s 23B of the Act, which are expressly excluded from the area covered by the native title determination application).

Those lots within the Town of Timber Creek (as notified in the Northern Territory Government Gazette No 24, 20 June 1975) and allocated the following numbers: that part of lot 16 covered by Miscellaneous Lease 82 granted on 28 August 1922, 22 and 49 and depicted on the map attached to Schedule A hereto.

Parts of Lot 70 covered by the following public works:

(i)415kv overhead power line running from Wilson Street road reserve heading west into the fenced compound referred to in paragraph (b) below, with a corridor of 4 metres either side of the line.

(ii)Bore RN 23442 in fenced compound of about 1,280m² with an access track from Wilson Street of 10 metres wide.

(iii)150mm transmission water pipe running to Bore RN 23442 with a corridor of 1.5 metres either side of the line from 100mm water pipe in Wilson Street road reserve.

(iv)Bore RN 23446 and any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of Bore RN 23446 in accordance with section 251D of the Native Title Act 1993 (Cth).

(v)150mm distribution water pipe running from Wilson Street road reserve heading west to water tank compound referred to below with a corridor of 1. 5 metres either side of the line.

(vi)0.3 megalitre ground level water tank and 0.1 megalitre ground level water tank in fenced compound of about 550m² and access track of 10 metres wide.

Parts of Lot 72 covered by the following public works:

(i)Bore RN 28437 in fenced compound of about 144m² with an access track from Wilson Street of 10 metres wide.

(ii)150mm transmission water pipe running to Bore RN 28437 from 100mm water pipe in Wilson Street road reserve (included in the area at paragraph (i) above).

(iii)Bores RN 23447, RN 23443, RN 27185 and RN 23445 and any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of Bores RN 23447, RN 23443, RN 27185 and RN 23445 in accordance with section 251D of the Native Title Act 1993 (Cth).

The location of these public works and adjacent areas is marked on Maps 1, 2 and 3 attached. The adjacent areas as marked on Maps 1, 2 and 3 in respect of Bores RN 23446, RN 23447, RN 23443, RN 27185 or RN 23445 are not intended to depict the size of the area of adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of those Bores.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD6016 OF 1999

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Applicant

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

NTD6008 OF 2000

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Applicants

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

NTD6012 OF 2000

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Applicants

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

AMATEUR FISHERMAN’S ASSOCIATION OF NORTHERN TERRITORY
Third Respondent

JUDGE:	WEINBERG J
DATE:	28 AUGUST 2006
PLACE:	DARWIN

REASONS FOR JUDGMENT

1. Judgment in this matter was delivered on 17 July 2006: Griffiths v Northern Territory of Australia [2006] FCA 903. On that date I ordered that the parties file and serve contentions regarding the form of any determination of native title in these proceedings, in order to give effect to those reasons for judgment.

2. On 25 August 2006, the parties filed a joint draft determination giving effect to those reasons for judgment.  That draft determination accurately reflects my findings.  I therefore make the orders, declaration, and determination contained therein.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:       28 August 2006

Counsel for the Applicant:	Mr R Levy
Solicitor for the Applicant:	Northern Land Council
Counsel for the First Respondent:	Ms R Webb QC with Mr M Storey
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second Respondent:	Mr M Johnson
Solicitors for the Second Respondent:	Maleys
Date of Hearing:	28 August 2006
Date of Judgment:	28 August 2006