Margarula on behalf of the Mirarr People v Northern Territory of Australia
[2018] FCA 1670
•9 November 2018
FEDERAL COURT OF AUSTRALIA
Margarula on behalf of the Mirarr People v Northern Territory of Australia [2018] FCA 1670
File number: NTD 6027 of 1998 Judge: GRIFFITHS J Date of judgment: 9 November 2018 Catchwords: NATIVE TITLE – where applicant filed a claimant application for a determination of native title – where the parties have agreed on the terms of a native title determination which gives effect to the reasons for judgment in Margarula v Northern Territory of Australia [2016] FCA 1018 – Court satisfied that it is appropriate to make orders Legislation: Native Title Act 1993 (Cth), ss 57, 87, 94A, 225 Cases cited: Margarula v Northern Territory of Australia [2016] FCA 1018
Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908
Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776
Date of hearing: 9 November 2018 Registry: Northern Territory Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 10 Solicitor for the Applicant: Mr D Wells of Northern Land Council Solicitor for the First Respondent: Ms J Laurence, Solicitor for the Northern Territory Solicitor for the Second and Fifth Respondents: Ms A Lowry of the Australian Government Solicitor ORDERS
NTD 6027 of 1998 BETWEEN: YVONNE MARGARULA AND NIDA MANGARNBARR (ON BEHALF OF THE MIRARR PEOPLE)
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA (and others named in the Schedule)
First Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
9 NOVEMBER 2018
THE COURT NOTES THAT: On 24 August 2016 the Court made orders that native title in the application area had been extinguished or suppressed, and that the parties have certain liberty to apply, in the terms set out in the orders, and the time for liberty to apply was extended by orders made on 31 August 2017. To the extent those orders may be read as determining whether or not native title exists in the application area, being the subject matter of the orders below, for the avoidance of doubt, those orders are vacated pursuant to rule 39.05(e) of the Federal Court Rules 2011 (Cth) (the Rules).
THE COURT ORDERS THAT:
1.The orders made on 24 August 2016, as varied on 31 August 2017, are vacated.
2.There be a determination of native title in terms of the determination set out below.
3.The native title is not to be held on trust.
4.An Aboriginal corporation whose name is to be provided within 12 months, or such further time as the Court may allow, is to:
(a)be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth) (the Act); and
(b)perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.
5.There be no order as to costs.
6.The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land in relation to the items noted in the fifth column of Schedule D2 and of the works and facilities referred to in Schedule C items 2 and 3.
Note: Settlement and entry of orders is dealt with in Part 39 of the Rules.
THE COURT DETERMINES THAT:
The Determination Area
1.The external boundaries of the Determination Area are described in Schedule A and depicted on Map 1 in Schedule B.
2.Native title:
(a)exists in the parts of the Determination Area referred to in Schedule C (the Native Title Area);
(b)does not exist in the parts of the Determination Area referred to in Schedule D (the Extinguished Area).
The native title holders (s 225(a))
3.The persons holding the rights comprising the native title are those Aboriginal people:
(a)who are members of the estate groups:
(i)Mirarr Gundjeihmi;
(ii)Mirarr Urningangk;
(iii)Mirarr Mengerrdji;
by virtue of descent through his or her father or father’s father or by virtue of adoption into one of the groups;
(b)whose mother or mother’s mother is or was a member of the groups referred to in paragraph (a);
(c)who are spouses of the persons referred to in paragraph (a);
(d)who have connections to the area by virtue of:
(i)being a member of a group (other than the groups referred to in paragraph (a)(ii) and (iii)), which group has an estate neighbouring the traditional estate of the Mirarr Gundjeihmi;
(ii)being spouses of the person referred to in paragraph (d)(i);
(iii)related spiritual affiliations or ritual authority in relation to the area.
The nature and extent of the native title (s 225(b))
4.The native title in relation to the Native Title Area comprises:
(a)the right to travel over, to move about and to have access to the area;
(b)the right to hunt and to fish on the land and waters of the area for personal, domestic or non-commercial exchange or communal consumption for purposes allowed by and under the traditional laws and customs of the native title holders;
(c)the right to gather and to use the natural resources of the area such as food, medicinal plants, wild tobacco, timber, stone and resin for personal, domestic or non-commercial exchange or communal consumption for purposes allowed by and under the traditional laws and customs of the native title holders;
(d)the right to take and to use the natural water on the area;
(e)the right to live, to camp and for that purpose to erect shelters and other structures on the area;
(f)the right to light fires on the area for domestic purposes, but not for the clearance of vegetation;
(g)the right to conduct and to participate in the following activities on the area:
(i)cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii)ceremonies;
(iv)meetings;
(v)teaching the physical and spiritual attributes of sites and places on the area that are of significance under the traditional laws and customs of the native title holders;
(h)the right to maintain and to protect sites and places on the area that are of significance under the traditional laws and customs of the native title holders;
(i)the right to share or exchange subsistence and other traditional resources obtained on or from the area for personal, domestic or non-commercial exchange or communal consumption for purposes allowed by and under the traditional laws and customs of the native title holders;
(j)the right to be accompanied on to the area by persons who, though not native title holders, are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the area;
(ii)people who have rights in relation to the area according to the traditional laws and customs acknowledged by the native title holders;
(iii)people required by the native title holders to assist in, observe, or record traditional activities on the area.
5.The native title rights referred to at [4] do not confer;
(a)possession, occupation, use and enjoyment of the Native Title Area on the native title holders to the exclusion of all others; or
(b)any right to control access to, or use of, the Native Title Area or its resources.
Other interests (s 225(c))
6.The other interests in relation to the Native Title Area are:
(a)the interests of the Director of National Parks:
(i)under the proclamation of Kakadu National Park published in the Gazette on 5 April 1979 pursuant to s 7(2) of National Parks and Wildlife Conservation Act 1975 (Cth) (the NPWC Act) continued in force by the Environmental Reform (Consequential Provisions) Act 1999 (Cth) as if declared a Commonwealth reserve under s 344 the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act);
(ii)under Part 15 Division 4 of the EPBC Act in relation to the management of the Commonwealth reserve known as Kakadu National Park;
(iii)as lessor under the Township Lease dated 29 June 1981 and granted pursuant to s 9(2A) of the NPWC Act;
(b)the interests of the Jabiru Town Development Authority as lessee under the Township Lease dated 29 June 1981 and granted pursuant to s 9(2A) of the NPWC Act and continued as a usage right under s 359 of the EPBC Act;
(c)the respective interests of Energy Resources of Australia Ltd, the Jabiru Town Development Authority, the Northern Territory and the Commonwealth in relation to the infrastructure and other works that are the subject of the trust provided for in the agreement between the Jabiru Town Development Authority and Energy Resources Australia Ltd entered into on or about 23 August 1985;
(d)the interests of the owners or operators of the works referred to in Schedule C item 2(i)–(iii);
(e)the interests of the holders of the sub-leases granted by the Jabiru Town Development Authority referred to in Schedule C1;
(f)the interests of Telstra Corporation Limited in respect of the facilities referred to in Schedule C2:
(i)as the owner or operator of the telecommunications facilities and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);
(ii)pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth).
(g)the rights of employees, agents or contractors of Telstra Corporation Limited to enter the area in the performance of their duties to enable access to its telecommunication facilities;
(h)the rights of Aboriginal persons (whether or not native title holders) in relation to:
(i)the traditional use of Commonwealth reserves under s 359A of the EPBC Act;
(ii)the protection of sacred sites under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
(i)rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority, as required and permitted in the performance of statutory duties;
(j)valid or validated rights and interests granted pursuant to, or held by force or operation of, laws of the Northern Territory or the Commonwealth.
Relationship between the native title rights and the other interests (s 225(d))
7.Except as otherwise provided by law, the relationship between the native title rights and the other interests is that:
(a)the other interests are not inconsistent with the continued existence of the native title rights;
(b)to the extent the other interests are inconsistent with the continued enjoyment or exercise of the native title rights, the native title rights continue to exist in their entirety, but the native title rights have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests;
(c)the existence, enjoyment and exercise of the native title rights do not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests and the doing of the required or permitted activity prevail over the native title rights and any enjoyment or exercise of the native title rights, but do not extinguish them.
Other matters
8.There are no native title rights or interests in:
(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) or s 5(1) of the Atomic Energy Act 1953 (Cth);
in the Native Title Area.
9.The native title rights are subject to and exercisable in accordance with:
(a)the traditional laws and customs of the native title holders;
(b)the laws of the Northern Territory and the Commonwealth.
Schedule A
External Boundaries of Determination Area: Clause 1
1.The external boundaries of the Determination Area are generally shown as bordered in blue on Map 1 in Schedule B.
2.The Determination Area comprises all that land and waters within the boundaries of former Northern Territory Portion 2272 delineated on Survey Plan S79/31 lodged with the Surveyor General of the Northern Territory (and noting that as surveyed Northern Territory Portion 2272 does not include Arnhem Highway).
Schedule B
Maps
Schedule B contains the following maps:
1.Map 1 – external boundaries of Determination Area
2.Map 2 – the part of the Determination Area where native title exists referred to in clause 2(a) and Schedule C (being the Native Title Area)
3.Map 3 – the part of the Determination Area where native title does not exist referred to in clause 2(b) and Schedule D (being the Extinguished Area)
In the event of an inconsistency in the description of an area or thing given in the text of the determination and depicted on a map, the text of the determination prevails.
Notes to Maps 2 and 3:-
1.Map 2 does not depict the location and extent of the works and facilities referred to in Schedule C items 2 and 3 or areas identified as part Lots in Schedule D2.
2.Map 3 does not depict the location and extent of the public works and adjacent areas in relation to the items noted in the fifth column to Schedule D2.
The precise location and boundaries of those works, facilities, public works and adjacent areas is the subject of liberty to apply under order [6].
Schedule C
The Native Title Area: Clause 2(a)
The Native Title Area comprises the land and waters within the boundaries of former Northern Territory Portion 2272 other than the Lots and areas referred to in Schedule D, as broadly depicted on Map 2 in Schedule B and shaded green.
The Native Title Area includes:
1.the Lots listed in Schedule C1;
2.save to the extent (if at all) they fall within the areas described in Schedule D, the following areas, being areas affected by works that are not public works within the meaning of the Act:
(i) the underground water line to the Kakadu National Park Headquarters;
(ii)Lot 2321 (including the electrical terminal box, sewage manhole, and light poles);
(iii)the Magella Creek sewage pipeline traversing east–west across Lot 2626
(iv)Lot 2317;
3.save to the extent (if at all) they fall within the areas described in Schedule D, the areas affected by telecommunications facilities of Telstra Corporation Limited referred to in Schedule C2;
4.any area or Lot, or part thereof, referred to in Schedule C items 2 and 3 and the fifth column of Schedule D2 in the event that Lot or area, or part thereof, is removed from inclusion in that schedule pursuant to the liberty to apply reserved under order [6] and noted in Schedule D2.
Schedule C1
Sub-leases in the Native Title Area: Clause 6(e)
1.The Lots listed below are covered by sub-leases that are not previous exclusive possession acts as:
(1)Crown to Crown grants within s 23B(9C) of the Act, being the sub-leases covering the Lots noted in the column headed 23B(9C);
(2)grants made after 23 December 1996 and thus excepted from Schedule D1, being the sub-leases covering the Lots noted in the column headed D1 Exception.
Lot Lessee 23B(9C) Term Lease purpose Date grant Date commenced D1
Exception69 Commonwealth 30.06.2021 Residential accommodation 26.06.1997 01.01.1995 Y 82 Commonwealth 30.06.2021 “ 26.06.1997 01.01.1995 Y 84 Commonwealth 30.06.2021 “ 26.06.1997 01.01.1995 Y 216 Commonwealth 30.06.2021 Residential accommodation 24.06.1997 01.01.1995 Y 220 Commonwealth 30.06.2021 “ 24.06.1997 01.01.1995 Y 263 NTHC Y HL-1 Residential 14.02.1990 16.11.1989 456 NTHC Y HL-1 Residential 14.02.1990 16.11.1989 472 NTHC Y HL-1 Residential 14.02.1990 16.11.1989 495 Commonwealth 30.06.2021 “ 26.06.1997 01.01.1995 Y Schedule C2
Telecommunication facilities in the Native Title Area: Clause 6(f)
The Native Title Area is affected by the telecommunications facilities of Telstra Corporation Limited listed below.
Facility description
Location description
Inter Exchange Network optical fibre cables connecting Jabiru to Nhulunbuy
Jabiru Township
Inter Exchange Network optical fibre cable connecting Jabiru to Darwin
Jabiru Township (along the Arnhem Highway)
Customer Access Network servicing Jabiru Township
Jabiru Township (along the Arnhem Highway)
Underground Telecommunications Line to KNP Headquarters
Part of NTP 2272
Schedule D
The Extinguished Area: Clause 2(b)
Native title does not exist in relation to the following parts of the Determination Area that have been the subject of a previous exclusive possession act within the meaning of s 23B of the Act which wholly extinguished native title (being the Extinguished Area):
1.The Lots covered by the sub-leases listed Schedule D1.
2.The Lots and areas covered by the public works listed in Schedule D2, including specified adjacent areas under s 251D of the Act.
Schedule D1
Sub-leases that are previous exclusive possession acts
Lot Lessee Term Lease purpose Date grant Date commenced 4 Energy Resources of Australia Ltd (ERA) Term of head-lease less 1 day (HL-1) Residential purposes 19.07.1989 10.06.1987 5 ERA HL-1 “ 19.07.1989 10.06.1987 6 ERA HL-1 “ 19.07.1989 10.06.1987 7 ERA HL-1 A purpose approved under the Town Plan 23.11.1987 31.12.1983 8 ERA HL-1 “ 23.11.1987 31.12.1983 9 ERA HL-1 “ 23.11.1987 31.12.1983 10 ERA HL-1 “ 23.11.1987 31.12.1983 15 ERA HL-1 “ 23.11.1987 31.12.1983 16 ERA HL-1 “ 23.11.1987 31.12.1983 17 ERA HL-1 “ 23.11.1987 31.12.1983 18 ERA HL-1 “ 23.11.1987 31.12.1983 19 ERA HL-1 “ 23.11.1987 31.12.1983 23 ERA HL-1 “ 23.11.1987 31.12.1983 24 ERA HL-1 “ 23.11.1987 31.12.1983 25 ERA HL-1 “ 23.11.1987 31.12.1983 26 ERA HL-1 “ 23.11.1987 31.12.1983 27 ERA HL-1 “ 23.11.1987 31.12.1983 28 ERA HL-1 “ 16.03.1987 31.12.1983 31 ERA HL-1 “ 23.11.1987 31.12.1983 32 ERA HL-1 “ 23.11.1987 31.12.1983 33 ERA HL-1 “ 23.11.1987 31.12.1983 34 ERA HL-1 “ 23.11.1987 31.12.1983 38 ERA HL-1 “ 16.03.1987 31.12.1983 39 Uniting Church in Australia Property Trust (NT) (“UCA”) HL-1 Residence 21.04.1988 31.12.1983 42 ERA HL-1 A purpose approved under the Town Plan 23.11.1987 31.12.1983 43 ERA HL-1 “ 23.11.1987 31.12.1983 47 ERA HL-1 “ 27.11.1987 31.12.1983 48 ERA HL-1 “ 27.11.1987 31.12.1983 49 ERA HL-1 “ 27.11.1987 31.12.1983 50 ERA HL-1 “ 27.11.1987 31.12.1983 51 ERA HL-1 “ 27.11.1987 31.12.1983 52 ERA HL-1 “ 27.11.1987 31.12.1983 53 ERA HL-1 “ 27.11.1987 31.12.1983 64 ERA HL-1 “ 27.11.1987 31.12.1983 65 ERA HL-1 “ 27.11.1987 31.12.1983 66 ERA HL-1 “ 27.11.1987 31.12.1983 67 ERA HL-1 “ 27.11.1987 31.12.1983 68 ERA HL-1 “ 27.11.1987 31.12.1983 70 ERA HL-1 “ 27.11.1987 31.12.1983 71 ERA HL-1 “ 27.11.1987 31.12.1983 73 Gagudju Association Inc (GAI) HL-1 Residential 26.04.1990 26.07.1989 76 ERA HL-1 A purpose approved under the Town Plan 27.11.1987 31.12.1983 77 ERA HL-1 “ 27.11.1987 31.12.1983 78 ERA HL-1 “ 27.11.1987 31.12.1983 79 ERA HL-1 “ 27.11.1987 31.12.1983 80 ERA HL-1 “ 27.11.1987 31.12.1983 81 ERA HL-1 “ 27.11.1987 31.12.1983 85 ERA HL-1 “ 27.11.1987 31.12.1983 86 ERA HL-1 “ 27.11.1987 31.12.1983 87 ERA HL-1 “ 27.11.1987 31.12.1983 88 ERA HL-1 “ 27.11.1987 31.12.1983 89 ERA HL-1 Residential purposes 19.07.1989 10.06.1987 90 ERA HL-1 “ 19.07.1989 10.06.1987 91 ERA HL-1 “ 19.07.1989 10.06.1987 138 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 139 ERA HL-1 “ 26.11.1987 31.12.1983 140 ERA HL-1 “ 26.11.1987 31.12.1983 141 ERA HL-1 “ 26.11.1987 31.12.1983 142 ERA HL-1 “ 26.11.1987 31.12.1983 144 ERA HL-1 “ 26.11.1987 31.12.1983 145 Autoland (NT) Pty Ltd HL-1 Residential 27.10.1989 26.07.1989 146 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 147 ERA HL-1 “ 26.11.1987 31.12.1983 148 ERA HL-1 “ 26.11.1987 31.12.1983 149 ERA HL-1 “ 26.11.1987 31.12.1983 151 Westpac Banking Corporation (Westpac) to 11.03.2007 Residential purposes 10.09.1986 11.03.1982 155 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 156 ERA HL-1 “ 26.11.1987 31.12.1983 157 ERA HL-1 “ 26.11.1987 31.12.1983 158 ERA HL-1 “ 26.11.1987 31.12.1983 159 ERA HL-1 “ 27.11.1987 31.12.1983 160 ERA HL-1 “ 27.11.1987 31.12.1983 161 ERA HL-1 “ 27.11.1987 31.12.1983 165 ERA HL-1 “ 27.11.1987 31.12.1983 166 ERA HL-1 “ 27.11.1987 31.12.1983 167 ERA HL-1 “ 27.11.1987 31.12.1983 168 ERA HL-1 “ 27.11.1987 31.12.1983 169 ERA HL-1 “ 27.11.1987 31.12.1983 172 ERA HL-1 “ 27.11.1987 31.12.1983 173 ERA HL-1 “ 27.11.1987 31.12.1983 174 ERA HL-1 “ 24.11.1987 31.12.1983 177 ERA HL-1 “ 24.11.1987 31.12.1983 178 ERA HL-1 “ 24.11.1987 31.12.1983 179 ERA HL-1 “ 24.11.1987 31.12.1983 183 ERA HL-1 “ 24.11.1987 31.12.1983 184 ERA HL-1 “ 24.11.1987 31.12.1983 185 ERA HL-1 “ 24.11.1987 31.12.1983 186 ERA HL-1 “ 24.11.1987 31.12.1983 187 ERA HL-1 “ 24.11.1987 31.12.1983 188 ERA HL-1 “ 24.11.1987 31.12.1983 190 Dipator Pty Ltd HL-1 Residential 27.10.1989 26.07.1989 192 ERA HL-1 A purpose approved under the Town Plan 24.11.1987 31.12.1983 193 ERA HL-1 “ 24.11.1987 31.12.1983 194 ERA HL-1 “ 24.11.1987 31.12.1983 195 ERA HL-1 “ 24.11.1987 31.12.1983 199 ERA HL-1 “ 24.11.1987 31.12.1983 200 ERA HL-1 “ 24.11.1987 31.12.1983 201 ERA HL-1 “ 24.11.1987 31.12.1983 203 ERA HL-1 “ 24.11.1987 31.12.1983 206 ERA HL-1 “ 24.11.1987 31.12.1983 207 ERA HL-1 “ 24.11.1987 31.12.1983 208 ERA HL-1 “ 24.11.1987 31.12.1983 209 ERA HL-1 “ 24.11.1987 31.12.1983 210 ERA HL-1 “ 24.11.1987 31.12.1983 211 ERA HL-1 “ 24.11.1987 31.12.1983 212 ERA HL-1 “ 24.11.1987 31.12.1983 213 ERA HL-1 “ 24.11.1987 31.12.1983 215 Rotor Services Pty Ltd HL-1 Residential 27.10.1989 08.09.1989 219 ERA HL-1 A purpose approved under the Town Plan 03.12.1987 31.12.1983 221 ERA HL-1 “ 02.12.1987 31.12.1983 222 ERA HL-1 “ 03.12.1987 31.12.1983 223 ERA HL-1 “ 03.12.1987 31.12.1983 227 Catholic Church of the Diocese of Darwin Property Trust HL-1 Presbytery Residence 10.05.1988 31.12.1983 228 ERA HL-1 A purpose approved under the Town Plan 03.12.1987 31.12.1983 229 ERA HL-1 “ 03.12.1987 31.12.1983 230 ERA HL-1 “ 01.12.1987 31.12.1983 235 ERA HL-1 “ 30.11.1987 31.12.1983 236 ERA HL-1 “ 30.11.1987 31.12.1983 237 ERA HL-1 “ 30.11.1987 31.12.1983 238 ERA HL-1 “ 30.11.1987 31.12.1983 240 ERA HL-1 “ 30.11.1987 31.12.1983 242 ERA HL-1 Residential purposes 19.07.1989 10.06.1987 243 ERA HL-1 “ 19.07.1989 10.06.1987 244 ERA HL-1 “ 19.07.1989 10.06.1987 247 ERA HL-1 A purpose approved under the Town Plan 30.11.1987 31.12.1983 251 ERA HL-1 “ 30.11.1987 31.12.1983 252 ERA HL-1 “ 30.11.1987 31.12.1983 253 ERA HL-1 “ 30.11.1987 31.12.1983 254 ERA HL-1 “ 30.11.1987 31.12.1983 255 ERA HL-1 “ 30.11.1987 31.12.1983 256 ERA HL-1 “ 30.11.1987 31.12.1983 257 ERA HL-1 “ 30.11.1987 31.12.1983 262 ERA HL-1 “ 30.11.1987 31.12.1983 266 ERA HL-1 “ 30.11.1987 31.12.1983 267 ERA HL-1 “ 30.11.1987 31.12.1983 268 ERA HL-1 “ 30.11.1987 31.12.1983 269 ERA HL-1 “ 30.11.1987 31.12.1983 270 ERA HL-1 “ 27.11.1987 31.12.1983 273 Autoland (NT) Pty Ltd HL-1 Residential 27.10.1989 26.07.1989 277 ERA HL-1 A purpose approved under the Town Plan 27.11.1987 31.12.1983 278 ERA HL-1 “ 27.11.1987 31.12.1983 279 ERA HL-1 “ 27.11.1987 31.12.1983 285 ERA HL-1 “ 27.11.1987 31.12.1983 286 ERA HL-1 “ 26.11.1987 31.12.1983 287 ERA HL-1 Residential purposes 19.07.1989 10.06.1987 288 ERA HL-1 “ 19.07.1989 10.06.1987 289 ERA HL-1 “ 19.07.1989 10.06.1987 387 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 388 ERA HL-1 “ 16.03.1987 31.12.1985 389 ERA HL-1 Residential purposes 19.07.1989 10.06.1987 390 ERA HL-1 “ 19.07.1989 10.06.1987 391 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 392 ERA HL-1 “ 26.11.1987 31.12.1983 393 ERA HL-1 “ 26.11.1987 31.12.1983 395 GAI HL-1 Residential 26.04.1990 26.07.1989 396 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 397 ERA HL-1 “ 26.11.1987 31.12.1983 398 ERA HL-1 “ 26.11.1987 31.12.1983 399 ERA HL-1 “ 26.11.1987 31.12.1983 400 ERA HL-1 “ 26.11.1987 31.12.1983 401 ERA HL-1 “ 26.11.1987 31.12.1983 402 ERA HL-1 “ 26.11.1987 31.12.1983 403 ERA HL-1 “ 26.11.1987 31.12.1983 404 ERA HL-1 “ 26.11.1987 31.12.1983 412 ERA HL-1 “ 26.11.1987 31.12.1983 413 ERA HL-1 Residential purposes 19.07.1989 10.06.1987 414 ERA HL-1 “ 19.07.1989 10.06.1987 415 ERA HL-1 “ 19.07.1989 10.06.1987 416 ERA HL-1 “ 16.03.1987 31.12.1985 423 ERA HL-1 A purpose approved under the Town Plan 26.11.1987 31.12.1983 425 ERA HL-1 “ 01.12.1987 31.12.1983 426 ERA HL-1 “ 01.12.1987 31.12.1983 429 ERA HL-1 “ 16.03.1987 31.12.1985 430 ERA HL-1 “ 01.12.1987 31.12.1983 431 ERA HL-1 “ 01.12.1987 31.12.1983 432 ERA HL-1 “ 01.12.1987 31.12.1983 433 ERA HL-1 “ 01.12.1987 31.12.1983 437 ERA HL-1 “ 01.12.1987 31.12.1983 439 ERA HL-1 “ 01.12.1987 31.12.1983 440 ERA HL-1 “ 03.12.1987 31.12.1983 441 ERA HL-1 “ 03.12.1987 31.12.1983 442 Autoland (NT) Pty Ltd HL-1 Residential 27.10.1989 26.07.1989 447 ERA HL-1 A purpose approved under the Town Plan 03.12.1987 31.12.1983 448 ERA HL-1 “ 03.12.1987 31.12.1983 449 ERA HL-1 “ 03.12.1987 31.12.1983 450 ERA HL-1 “ 03.12.1987 31.12.1983 457 ERA HL-1 “ 03.12.1987 31.12.1983 458 ERA HL-1 “ 03.12.1987 31.12.1983 459 ERA HL-1 “ 03.12.1987 31.12.1983 465 ERA to 30.06.2021 Residential 27.02.1997 01.01.1986 469 ERA HL-1 A purpose approved under the Town Plan 16.03.1987 31.12.1985 471 Westpac to 11.03.2007 Residential purposes 10.09.1986 11.03.1982 473 Autoland (NT) Pty Ltd HL-1 Residential 27.10.1989 26.07.1989 480 ERA HL-1 A purpose approved under the Town Plan 03.12.1987 31.12.1983 481 ERA HL-1 “ 30.11.1987 31.12.1983 482 ERA HL-1 “ 30.11.1987 31.12.1983 483 ERA HL-1 “ 30.11.1987 31.12.1983 484 ERA HL-1 “ 30.11.1987 31.12.1983 485 ERA HL-1 “ 01.12.1987 31.12.1983 486 ERA HL-1 “ 01.12.1987 31.12.1983 487 ERA HL-1 “ 01.12.1987 31.12.1983 490 ERA HL-1 “ 01.12.1987 31.12.1983 491 ERA HL-1 “ 01.12.1987 31.12.1983 492 ERA HL-1 “ 01.12.1987 31.12.1983 493 ERA HL-1 “ 01.12.1987 31.12.1983 494 ERA HL-1 “ 01.12.1987 31.12.1983 498 ERA HL-1 “ 01.12.1987 31.12.1983 499 ERA HL-1 “ 01.12.1987 31.12.1983 500 ERA HL-1 “ 01.12.1987 31.12.1983 501 ERA HL-1 “ 02.12.1987 31.12.1983 502 ERA HL-1 “ 02.12.1987 31.12.1983 503 ERA HL-1 “ 02.12.1987 31.12.1983 505 Westpac to 11.03.2007 Residential purposes 10.09.1986 11.03.1982 507 ERA HL-1 A purpose approved under the Town Plan 02.12.1987 31.12.1983 508 ERA HL-1 “ 02.12.1987 31.12.1983 509 ERA HL-1 “ 02.12.1987 31.12.1983 512 ERA HL-1 “ 02.12.1987 31.12.1983 515 ERA HL-1 “ 02.12.1987 31.12.1983 516 ERA HL-1 “ 02.12.1987 31.12.1983 517 ERA HL-1 “ 02.12.1987 31.12.1983 518 ERA HL-1 “ 02.12.1987 31.12.1983 803 ERA HL-1 “ 02.12.1987 31.12.1983 872 ERA HL-1 “ 02.12.1987 31.12.1983 874 ERA HL-1 “ 02.12.1987 31.12.1983 875 ERA HL-1 “ 02.12.1987 31.12.1983 880 ERA HL-1 “ 02.12.1987 31.12.1983 932 A & H Luglietti HL-1 Bakery and Caretaker’s Cottage 28.08.1990 28.08.1990 942 Dipator Pty Ltd HL-1 Restaurant and take away food outlet 26.04.1989 01.03.1989 944 Gamak Pty Ltd to 30.06.2006 Motor vehicle service station, motor vehicle spare parts shop and motor vehicle workshop 12.11.1986 01.07.1981 945 Gamak Pty Ltd to 30.06.2006 Sale and distribution of motor vehicles 12.11.1986 01.07.1981 949 ERA 30.06.2021 Sports and social club 29.08.1997 01.04.1995 955 ERA HL-1 Caravan park 11.07.1989 31.12.1983 956 ERA 5 years To provide accommodation for certain classes of persons 19.08.1992 14.07.1992 957 ERA HL-1 Television Station 19.07.1989 31.12.1983 970 GAI 18.09.1988 Hotel Development 09.02.1988 8.09.1987 970 GAI HL-1 Hotel Operation 28.09.1989 19.09.1988 973 Australian Frontier Holidays Ltd 27.08.1991 Tourist campground / holiday park 15.12.1989 28.08.1989 2007 Westpac 11.03.2007 Residential purposes 10.09.1986 11.03.1982 2008 ERA HL-1 Town Office 19.07.1989 31.12.1983 2011 ERA HL-1 Occupation and/or under-leasing for commercial purposes 19.07.1989 31.12.1983 2016 ERA HL-1 Supermarket and Variety Store 10.09.1986 31.12.1983 2043 Catholic Church of the Diocese of Darwin Property Trust HL-1 Church 10.05.1988 31.12.1983 2230 GAI HL-1 Workshop Storage and Office Complex 21.04.1988 10.09.1985 2232 Pioneer Concrete (NT) Pty Ltd HL-1 Concrete Batching Plant & associated works 17.12.1986 09.09.1985 2233 Pioneer Concrete (NT) Pty Ltd HL-1 Stockpiling of sand and gravel 30.10.1990 27.09.1990 2243 Kakadu Contracting Pty Ltd 11.08.1993 Plumbing Contracting business 03.01.1992 12.08.1991 2255 ERA HL-1 Industrial premises 19.07.1989 31.10.1983 2316 ERA HL-1 Toilet block 19.07.1989 31.12.1983
Schedule D2
Public Works that are previous exclusive possession acts
Note: in respect of an item below with an entry in the fifth column headed order [6], a party has leave to apply to have all or any part of the areas referred to in the second column of Schedule D2 further specified with greater particularity or removed from or reduced within the adjacent area referred to in those items.
Item No Nature of Public Work Affected Lot(s) Extent of Area of Public Work including any s 251D adjacent area Order [6] Road 1 Jabiru Drive, Lakeside Drive 1424, 1431 Whole of Lots 1424, 1431 (which constitute the road known as Jabiru Drive) and whole of Lots 953, 968, 1427, 2015, 2025, 2032 (which are adjacent land to Jabiru Drive).
Liberty to apply re parts of Lots 953, 968, 1427, 2015, 2025, 2032. 2 Arnhem Highway Land constituting Arnhem Highway is outside claim area. Whole of Lots 2306, 2318, 2319 (which are adjacent to the land constituting Arnhem Highway). Liberty to apply re parts of Lots 2306, 2318, 2319. 3 Unnamed road 965
Whole of Lot 965.
4 Unnamed road 966 Whole of Lot 966. 5 Unnamed road 969 Whole of Lot 969. 6 Road (Tasman Cres & Thorne St) 986 Whole of Lot 986. 7 Road (Leichhardt St) 1401 Whole of Lot 1401. 8 Road (Lakeside Dve) 1402 Whole of Lot 1402. 9 Road (Civic Dve & Waterhouse Rd) 1403 Whole of Lot 1403. 10 Road (Kinchela Rd, Jabiru Dve & Waterhouse Rd) 1404 Whole of Lots 1404, 1430. 11 Road (Van Delft St) 1406 Whole of Lot 1406. 12 Road (Castenzoon St) 1407 Whole of Lot 1407. 13 Road (Calvert Cres, Carrington Pl, Stuart Pl) 1408 Whole of Lot 1408.
14 Road (Harden Cl, Broad Pl, Campbell Pl, Sergison Pl, Lyons St) 1409 Whole of Lot 1409.
15 Road (Civic Dve, Kinchela Rd) 1410 Whole of Lot 1410. 16 Road (Callitris Cres) 1411 Whole of Lot 1411. 17 Road (Phillips Cl, Kinjo Pl, Dianella Pl, Dyer Pl, Roper Pl) 1412 Whole of Lot 1412.
18 Road (Kinchela Rd, Tamarind Pl, Miniata Pl, Hall Pl) 1413 Whole of Lot 1413.
19 Road (Langford Smith Dve, Taylor Pl, McColl Pl) 1414 Whole of Lot 1414.
20 Road (Langford Smith Dve, Jabiru Dve) 1415 Whole of Lot 1415. 21 Road (Sherrin Pl, Clymo St, McKinlay Cres) 1416 Whole of Lot 1416. 22 Road (Civic Dve, Leichhardt St) 1417 Whole of Lot 1417. 23 Road (Calvert Cres, Murphy Pl, Thring Pl, Lewis Cl) 1418 Whole of Lot 1418.
24 Road (Kekwick Pl) 1419 Whole of Lot 1419.
25 Road (Jabiru Cres) 1420 Whole of Lot 1420. 26 Road (Civic Dve, Jabiru Dve, Fisher Cl, Nash Pl, Frew Pl, Brown Pl, King Pl, McGorrery Pl) 1421 Whole of Lot 1421.
27 Road (Allamanda Cl, Tuckier Pl, Paddy Pl, Maranta Pl, Melaleuca Pl, Morey Pl , Cassia Pl) 1422 Whole of Lot 1422.
28 Unnamed road 1423 Whole of Lot 1423.
29 Road (Leichhardt St, Flinders St, Tasman Cres) 1425 Whole of Lot 1425. 30 Road (Tasman Cres) 1426 Whole of Lot 1426. 31 Road (Elsherana Rd) 1428 Whole of Lot 1428. 32 Road (Civic Dve) 1429 Whole of Lot 1429. 33 Car Park
2009 Whole of Lot 2009. 34 Road (Town Centre Car Park) 2017 Whole of Lots 2017, 981. 35 Road (Town Centre Car Park) 2028 Whole of Lot 2028. 36 Car Park 2031 Whole of Lot 2031. 37 Road (Jabiru Dve) Part of Lot 2348 That part of Lot 2348 being the subject of a section of Jabiru Road, 30m in length, extending north from Lot 1404 to Lot 1415. Liberty to apply re part of Lot 2348. Bores 37 Bores 975, 976 Whole of Lots 975, 976. Major Earthworks 38 Public Swimming Pool 890 Whole of Lot 890 and that part of Lot 899 upon which there is a car park. 39 Sports Fields 898, 899 Whole of Lots 898, 899. 40 Sports and Social Club 949 Whole of Lot 949. 41 Golf Club and Golf Course 2101 Whole of Lot 2101. 42 Garbage Dump 2301, 2306 Whole of Lots 2301, 2306. Liberty to apply re Lot 2306. 43 Sewerage Ponds 2302 Whole of Lots 2302, 2303. 44 Lake Jabiru 2304 Whole of Lot 2304 and that part of Lot 2317 comprising an area of 7ha where the camp and adjacent area of the camp is located. Liberty to apply re Lot 2317. 45 Green Waste Dump 2326 That part of Lot 2326 on which earthworks and access track constructed. 46 Pedestrian Underpass 2326 That area of Lot 2326 on which work and associated infrastructure (including bike paths) constructed. Liberty to apply re Lot 2326. 47 Borrow Pits Area north of Jabiru Drive Area on which borrow pits constructed. Liberty to apply. A Building or Other Structure (including a memorial), that is a Fixture 48 Manaburduma Jabiru Town Camp 2317 That part of Lot 2317 comprising an area of 7ha where the camp and adjacent area of the camp is located. Liberty to apply re part of Lot 2317. 49 House
1, 2, 3, 20, 35, 217, 241, 281, 282, 394, 36, 41, 405, 453, 510, 804, 44, 45, 46, 56, 58, 60, 61, 62, 63, 72, 74, 75, 83, 150, 152, 163, 164, 175, 176, 180, 181, 182, 189, 191, 196, 197, 198, 202, 204, 214, 225, 226, 231, 234, 239, 248, 249, 250, 258, 259, 260, 271, 272, 274, 406, 408, 409, 411, 417, 419, 420, 421, 422, 428, 434, 435, 443, 444, 451, 452, 454, 461, 462, 463, 464, 468, 470, 476, 477, 479, 496, 497, 504, 511, 513, 514, 842, 843, 844, 845, 846, 847, 848, 849, 2041 Whole of lot on which house constructed and (as applicable) public open areas adjacent to the lots comprising Lots 883, 2309, 2310, 2311, 2312, 2313, 2314, 2315. 50 Unit Complex
21, 22, 54, 162, 224, 261, 280, 407, 410, 418, 427, 460, 475, 478, 488, 489 Whole of lot on which complex constructed and (as applicable) public open areas adjacent to the lot comprising lots 883, 2309, 2310, 2312, 2313, 2315. 51 Townhouse Complex
881 Whole of Lot 881. 52 School 895 Whole of Lots 895 and 900 53 Fire Station 931 Whole of Lot 931. 54 Telephone Exchange and Broadcast Facility 962 Whole of Lots 962, 961. 55 Radio and Television Broadcasting Facility 964 Whole of Lot 964. 56 Training Centre 978 Whole of Lot 978. 57 Government Offices 2005 Whole of Lot 2005. 58 Community Health Centre 2019 Whole of Lots 2019 and 2028. 59 Court House 2040 Whole of Lot 2040. 60 Police Station 2042 Whole of Lot 2042. 61 Industrial Premises 2244 Whole of Lot 2244. 62 Telecom Depot 2245 Whole of Lots 2245, 961. 63 Police Security Compound 2246 Whole of Lot 2246. 64 Emergency Services Compound 2323 Whole of Lot 2323. 65 JTDA Depot and Nursery 948 Whole of Lot 948 66 Town Plaza (Shop Buildings, Covered Walkways) 980 Whole of Lots 980, 981, 2010.
67 Child Minding Centre 985 Whole of Lots 985, 981, 2010, 2009. 68 Community Hall 2012 Whole of Lots 2012 and 2017.
69 Supermarket 2016 Whole of Lots 2016, 2017 and 2031. 70 Golf Club 2324 Whole of Lot 2324. 71 Go Kart Track 2326 That part of Lot 2326 on which track and associated works (including access tracks) constructed. Liberty to apply re Lot 2326. 72 Nanambu Creek Bore Pipeline Part of NTP 2272 Area on which the pipeline is constructed, together with the adjacent land that was necessary for, or reasonably incidental to, its construction. Liberty to apply. 73 Street Lights Alongside each of the lots listed under the heading “Roads” in this schedule, excepting only those parts of 1404, 1415 and 1421 that form the section of Jabiru Drive between Civic Drive and Kinchela Road Area on which the street light is constructed, together with the adjacent land that was necessary for, or reasonably incidental to, its construction. Liberty to apply. 74 Walking Paths Between Lots 960, 961, 948; between Lots 880, 881; between Lots 345, 335, 334; alongside 874, 875, 70, 78, 871, 387 and 390 Area on which the path is constructed, together with the adjacent land that was necessary for, or reasonably incidental to, its construction. Liberty to apply. 75 Steel Boardwalk at Bowali Visitor Centre Part of NTP 2272 Area on which the boardwalk is constructed, together with the adjacent land that was necessary for, or reasonably incidental to, its construction. Liberty to apply. Transmission and Distribution Water Pipes and Associated Infrastructure 76 Water Tower 2023 Whole of Lot 2023. 77 Water Pumping Station 2100 Whole of Lot 2100. 78 Sewage Pump Station 977 Whole of Lot 977, comprising whole of administrative parcel (part of lot 2626). Electricity Transmission Lines, Towers, Poles and Associated Infrastructure 79 Electricity Sub-station 2201 Whole of Lot 2201. 80 Aboveground Powerline to KNP Headquarters Part of NTP 2272 (alongside the Arnhem Highway on the northern side, to the intersection with the Kakadu Highway) Area on which the powerline is constructed, together with the adjacent land that was necessary for, or reasonably incidental to, its construction. Liberty to apply. 81 Nanambu Creek Bore Powerline Part of NTP 2272 Area on which the powerline is constructed, together with the adjacent land that was necessary for, or reasonably incidental to, its construction. Liberty to apply. SCHEDULE OF PARTIES
NTD 6027 of 1998 Respondents
Second Respondent:
COMMONWEALTH OF AUSTRALIA
Third Respondent:
ENERGY RESOURCES OF AUSTRALIA LTD
Fourth Respondent:
JABIRU TOWN DEVELOPMENT AUTORITY
Fifth Respondent:
DIRECTOR OF NATIONAL PARKS
Sixth Respondent:
GUNDJEHMI ABORIIGNAL CORPORATION
Seventh Respondent:
NORTHERN LAND COUNCIL
Eighth Respondent:
TELSTRA CORPORATION LIMITED ABN 33 051 775 556
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
On 24 August 2016, Mansfield J published reasons for judgment in relation to whether any executive or legislative acts since European settlement had extinguished native title in the claim area (broadly, Jabiru Township and its immediate surrounds), and the extent of any such extinguishment (the extinguishment questions). His Honour’s reasons for judgment are reported as Margarula v Northern Territory of Australia [2016] FCA 1018 (Margarula No 1).
There is a helpful summary of the background matters in [3]-[26] of Mansfield J’s judgment:
3.In 1788, the “First Fleet” landed on the eastern coast of Australia and established the colony of New South Wales. In 1825, the borders of the colony of New South Wales were expanded by Letters Patent issued by the King: Letters Patent, 16 July 1825. The Jabiru land thereby fell within the colony of New South Wales. In 1836, another British colony was established in Australia, the colony of South Australia. In 1863, the boundaries of South Australia and New South Wales were altered so that the Jabiru land then formed part of South Australia: Letters Patent, 6 July 1863.
4.It was not until 30 January 1882, however, that the Jabiru land was for the first time put to any formal use by European colonists. In that year, two pastoral leases over the Jabiru land were granted by the Crown to Charles Brown Fisher, a prominent Melbourne-based pastoralist at that time, under the Northern Territory Land Act 1872 (SA) (1872 Act) and the Northern Territory Land Amendment Act 1876 (SA). The two leases together covered the entirety of the Jabiru land. In 1889, Mr Fisher surrendered the leases.
5.Then in 1892, two new pastoral leases were granted over the same land, pursuant to a new Act, the Northern Territory Crown Lands Act 1890 (SA) (1890 Act). The leases were granted to the bushman and explorer Harry Stockdale. They were cancelled two years later in 1894 for non-payment of rent. In 1895, one larger pastoral lease was granted over the same area, pursuant to the 1890 Act, to James Ebenezer Tonkin. Mr Tonkin's pastoral lease was cancelled only eight years later, in 1903.
6.From 1903 until 1937, no non-indigenous person held any rights over the Jabiru land. During that time, on 1 January 1911, the Jabiru land became part of the Northern Territory of Australia (the Territory), a territory of the newly-formed Commonwealth of Australia: Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth). In 1927, the Commonwealth split the Northern Territory into two administrative regions: North Australia and Central Australia: Northern Australia Act 1926 (Cth). The Jabiru land fell within North Australia. In 1931, however, the two regions were abolished and the Jabiru land again simply became part of the newly-recreated Territory.
7.In 1937, a grazing licence was granted over the Jabiru land by the Commonwealth to Edward Sawdy and Daniel Osborn, pursuant to the Crown Lands Ordinance 1931 (NT) (1931 CL Ordinance). In the next nearly 30 years, eight further grazing licences were granted over the Jabiru land to various other persons. None of these nine grazing licences lasted for a term of more than four years. The last one, which was held by Mudginberri Station Ltd (Mudginberri), expired on 30 June 1965.
8.The next day, 1 July 1965, an Occupation (Development) Licence (ODL) was granted over the whole of the Jabiru land to the same company, Mudginberri. The ODL was granted pursuant to s 108 of the 1931 CL Ordinance. The ODL gave Mudginberri the right to occupy the land for the purpose of taking and shooting of buffaloes, and the production of meat and hides from the carcasses of those buffaloes, and for any other purposes approved by the Administrator of the Territory. The ODL was surrendered by Mudginberri less than two years later, on 11 January 1967.
9.For the five subsequent years, no right or interest in the Jabiru land was granted by the Commonwealth to any person. Then in 1972, the Commonwealth declared land including the Jabiru land to be a sanctuary and a protected area under ss 14 and 22 respectively of the Wildlife Conservation and Control Ordinance (NT).
10.To this point, the nature and extent to which legislative or executive action may have impeded the existence and enjoyment of the traditional rights and interests of the Mirarr People over the Jabiru land is clean and uncomplicated.
11.In 1975, the Ranger Uranium Environmental Inquiry (Ranger Inquiry) was established to conduct an inquiry in relation to a proposal for the development of uranium deposits at sites near the Jabiru land (in accordance with s 11 of the Environment Protection (Impact of Proposals) Act 1974 (Cth)). The proposal had been made by the then Australian Atomic Energy Commission and Ranger Uranium Mines Pty Ltd. Pursuant to s 11(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), the Ranger Inquiry was also empowered to make findings for the purposes of the ALRA that groups of Aboriginals are entitled by Aboriginal tradition to the use or occupation of certain areas of land.
12. The Ranger Inquiry produced two reports.
13.On 17 May 1977, the Second Report of the Ranger Inquiry (Ranger Report) was published. The Ranger Report recommended that:
a major national park be established over a large tract of land including the Jabiru land, with Aboriginal participation in its planning and management;
a town be constructed within the new national park, and that the land for the proposed town not be granted as Aboriginal land under the ALRA, but become part of the national park;
the rest of the relevant land including the Jabiru land other than the township be granted to an Aboriginal Land Trust under the ALRA; and
the land grant to the proposed Aboriginal Land Trust and the establishment of the national park should occur before any substantial construction work is done on the Ranger uranium mine project.
14.On 25 August 1977, the Commonwealth Government announced that it accepted the principal findings and recommendations of the Ranger Report: House of Representatives, Parliamentary Debates, 25 August 1977, 645, 665-667. Amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) (NPWC Act) and the ALRA were subsequently introduced into Parliament on 10 April 1978. Both sets of amendments were passed and commenced on 9 and 23 June 1978 respectively. The NPWC Act amendments, inter alia, clarified that national parks may be declared over an area of Aboriginal land held under lease by the Director of National Parks and Wildlife (the Director). The ALRA amendments, inter alia, enabled areas around the Jabiru land to be granted to an Aboriginal Land Trust and then leased to the Director.
15.During this period, the Commonwealth Government had also determined that the Territory should become a self-governing territory of the Commonwealth. The Northern Territory (Self-Government) Act 1978 (Cth) (SG Act) was passed to achieve this. Parts of the SG Act, including s 70, commenced on 22 June 1978. The remainder of the SG Act, including the substantive provisions formally creating the Territory as a separate body politic, commenced on 1 July 1978. This Act meant that the Territory was established as a "body politic under the Crown by the name of the Northern Territory of Australia": s 5, which would now have its own institutions of self-government that would make its own laws, while still remaining a territory of the Commonwealth.
16.On the day of commencement, 1 July 1978, it was understood that the Territory acquired from the Commonwealth radical title to all the land within its territory. However, pursuant to ss 69 and 70 of the SG Act and a gazettal notice published on 29 June 1978 in accordance with those provisions, the Commonwealth acquired certain lands from the NT on the day the Act came into operation. Those lands included the Jabiru land.
17.Not long after, on 5 April 1979, the Governor-General declared by a proclamation published in the Commonwealth Gazette that an area including the Jabiru land was to be a park, and would be known as 'Kakadu National Park'. That declaration was made pursuant to s 7(2) of the NPWC Act. Upon that declaration being made, the Jabiru land was automatically vested in the Director of National Parks and Wildlife (Director), by force of s 7(7) of the NPWC Act. The Director later had the title to Kakadu National Park registered under the Real Property Act 1886 (NT) on 9 March 1982.
18.On 12 January 1979, the Jabiru Town Development Act (NT) (Jabiru TD Act) was passed. It established a statutory corporation, the Jabiru Town Development Authority (JTD Authority), which would be responsible for developing a town to be known as Jabiru on the Jabiru land: Jabiru TD Act, ss 3, 15(1)(a).
19.A number of licences were then granted by the Director to the JTD Authority between 14 June 1979 and 2 April 1981, pursuant to s 8D(2) of the NPWC Act. The licences permitted the construction of various works, amenities and buildings for the town of Jabiru. Then, on 29 June 1981, the Director granted a 40-year lease to the JTD Authority of the Jabiru land, pursuant to the NPWC Act (Township Lease).
20.In the subsequent years, the JTD Authority has granted various sub-leases to various entities for various purposes related to the development of the Jabiru Township. The earliest such sub-lease commenced on 1 July 1981, and the most recent in 1996. Most of the sub-leases were made to either Crown entities, in particular the Commonwealth and the NT Housing Commission, or to Energy Resources of Australia Ltd (ERA), a uranium mining company and subsidiary of the Rio Tinto group. ERA operates the Ranger uranium mine, which is eight kilometres east of the Jabiru Township. A few other sub-leases have been granted by the JTD Authority to other entities, generally businesses and churches.
21.From 1979 onwards, various works have been constructed in accordance with the various licences and sub-leases that have been granted over the Jabiru land. Many houses have been constructed, along with public amenities such as a fire station, sports and social club, swimming pool and related amenities, shops, and services such as roads, a sewage pump station, a bore, a telephone exchange, and for similar functions. The 2011 Census recorded the population of Jabiru at 1,129, with 630 private dwellings.
THE PRESENT PROCEEDING
22.In 1998, Yvonne Margarula (the Applicant), on behalf of the Mirarr people, filed an application in this Court for a determination of native title rights and interests over an area of land including the Jabiru area. This had become possible under the newly-passed NTA.
23.As noted, the parties agree that, prima facie, the Mirarr people hold native title rights and interests in respect of the Jabiru land within the meaning of s 223 of the NTA. The contested issue, however, is whether those native title rights and interests have been wholly or partially extinguished as a result of the various acts of the Crown since British settlement. Those acts have been briefly summarised above. The effect of those acts on the Mirarr people's native title rights and interests must now be ascertained.
24.Apart from the Applicant, five respondents made oral submissions at the hearing of this matter. They were the Territory and the JTD Authority (collectively, the NT Respondents), the Commonwealth and the Director (collectively, the Commonwealth Respondents), and ERA.
25.It is agreed by the parties that the Mirarr People originally had native title rights to possess, occupy, use and enjoy the Jabiru land to the exclusion of all others (the exclusive native title rights). It is also agreed by the parties that the exclusive native title rights have been extinguished as a result of grants of pastoral leases by the Crown in the nineteenth century.
26.It is also agreed by the parties that if the Mirarr people's native title has not been wholly extinguished, then the Mirarr People’s native title comprises the following rights, subject to the traditional laws and customs that govern their exercise:
(a) the right to travel over, move about and have access to the Jabiru land;
(b)the right to hunt and fish on the land and waters of the Jabiru land for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under the traditional laws and customs of the Mirarr people;
(c)the right to gather and use the natural resources of the Jabiru land such as food, medicinal plants, wild tobacco, timber, stone and resin for personal, domestic, or non-commercial exchange or communal consumption for the purposes allowed by and under the traditional laws and customs of the Mirarr people;
(d)the right to take and use the natural water on the Jabiru land;
(e)the right to live, to camp and for that purpose to erect shelters and other structures on the Jabiru land;
(f)the right to light fires on the Jabiru land for domestic purposes, but not for the clearance of vegetation;
(g)the right to conduct and participate in the following activities on the claim area:
(i) cultural activities;
(ii)cultural practices relating to birth and death, including burial rites;
(iii) ceremonies;
(iv) meetings;
(v)teaching the physical and spiritual attributes of sites and places on the claim area that are of significance under the traditional laws and customs of the Mirarr people;
(h)the right to maintain and protect sites and places on the Jabiru land that are of significance under traditional laws and customs of the Mirarr people;
(i)the right to share or exchange subsistence and other traditional resources obtained on or from the Jabiru land for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under traditional laws and customs of the Mirarr people;
(j)the right to be accompanied onto the Jabiru land by persons who, though not native title holders, are:
(i)people required by traditional law and custom for the performance of ceremonies or cultural activities on the Jabiru land;
(ii)people who have rights in relation to the claim area according to the traditional laws and customs acknowledged by the Mirarr people;
(iii)people required by the Mirarr people to assist in, observe, or record traditional activities on the Jabiru land.
(together, the non-exclusive native title rights).
On 24 August 2016, the Court made declaratory orders which gave effect to Mansfield J’s reasons for judgment relating to the extinguishment questions. It was left to the parties to seek to agree on the terms of a native title determination. There has been some delay because an issue arose as to whether any such determination was a consent determination under s 87 of the Native Title Act 1993 (Cth) (NT Act), or whether it simply gave effect to Mansfield J’s reasons.
The parties have now agreed that the latter approach is correct. It is the same approach as was taken by the parties in Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908. In that case, Mansfield J had earlier published reasons for judgment on 30 June 2016 in Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776, in which his Honour decided that the right to access and take resources from the claim area by the estate group members is an unrestricted one and is not restricted to taking for personal purposes of a domestic or subsistence nature only. Importantly, Mansfield J also included in his reasons for judgment his determination of issues relating to the extinguishment questions.
The Court did not make formal orders on 30 June 2016, when Mansfield J’s reasons for judgment were published. Rather, his Honour acceded to the parties’ suggestion that they should prepare a determination, with which I agree. This then occurred and formal orders giving effect to the earlier reasons for judgment were made by the Court on 11 August 2016.
A similar course is now proposed by the parties here.
Consistently with s 94A of the NT Act, the parties have lodged with the Court a Minute of Proposed Orders and Determination of Native Title, which sets out the details of each of the matters identified in s 225 of the NT Act.
In the events that have occurred, the applicant was not able to complete the process for nominating and approving a prescribed body corporate for the purposes of s 57(2) of the NT Act. That is now to occur within 12 months, or such further time as the Court may allow.
I am satisfied that the proposed orders give effect to Mansfield J’s reasons for judgment in Margarula No 1.
Accordingly, the Court will now make formal orders which recognise the Mirarr People as the holders of native title over the Jabiru land, as identified in the Determination and which does not include the areas shown in Map 3 and which are described in detail in Schedule D.
I certify that the preceding ten (10) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 9 November 2018
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