Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia

[2004] FCAFC 187

FEDERAL COURT OF AUSTRALIA

Wandarang, Alawa, Marra and Ngalakan Peoples
v  Northern Territory of Australia [2004] FCAFC 187

NATIVE TITLE - Consent Determination

THE WANDARANG, ALAWA, MARRA AND NGALAKAN PEOPLES v THE NORTHERN TERRITORY OF AUSTRALIA AND ORS

D 6022 of 2000

BLACK CJ, MOORE AND HELY JJ
3 JUNE 2004
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA  No D6022/00

NORTHERN TERRITORY DISTRICT REGISTRY

BETWEEN:

WANDARANG, ALAWA, MARA AND NGALAKAN PEOPLES

Applicants

AND:

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

AND:

NORTHERN TERRITORY LAND CORPORATION

Second Respondent

AND:

NORTHERN TERRITORY SEAFOOD COUNCIL INC.

Third Respondent

ORDERS

Coram:          Black CJ, Moore and Hely JJ

Place:            Darwin

Date:              3 June 2004.

THE COURT ORDERS AND DIRECTS THAT:

1. The Northern Territory be granted an extension of time in which to file and serve its notice of cross-appeal and amended notice of cross-appeal from the judgement and orders of Justice Olney given and made on 14 November 2000 at Darwin.

1. By consent the appeal, and cross-appeal (as amended), are upheld in part and a determination of native title made on 14 November 2000 is varied to the extent specified in the schedule.

1. Each party shall bear its own costs of the appeal and cross-appeal.

   By The Court

   ___________________

Date entered:             DISTRICT REGISTRAR

SCHEDULE

THE COURT DETERMINES THAT:

1. Native title exists in the "determination area" described in the First Schedule save for the areas of land or waters described in the Second Schedule.

1. The groups of persons holding the common or group rights comprising the native title (the common law holders) are those Aboriginals who:

   (a)are members of one or more of the 12 claimant groups by virtue of descent through his or her father's father, father's mother, mother's father or mother's mother; or

   (b)are otherwise recognised as members of one or more of the 12 claimant groups in accordance with the traditional laws and customs of such group;

   and are recognised by the respective Mingirringgi, Junggayi and Darlnyin of the countries comprising the determination area as having communal, group or individual rights and interests in relation to the determination area or a part of it.

2. Subject to paragraphs 5, 6, 7 and 8 of this determination, the nature and extent of the native title rights and interests in relation to the determination area are:

   (a)a right to posses, occupy, use and enjoy the determination area;

   (b)a right to speak for and make decisions about the use and enjoyment of the determination area;

   (c)a right to reside upon the land in the determination area and otherwise to have access to the determination area;

   (d)a right to use and enjoy the natural resources found on or within the determination area;

   (e)a right to maintain and protect places of importance under the traditional laws, customs and practices in that area otherwise than with respect to the rights and interests identified in paragraph 4 below.

3. The nature and extent of other interests in relation to the determination area are:

   (a)the rights and interests of the registered proprietor of Crown Lease Perpetual 346 being the whole of the land comprised in Certificate of Title Volume 197 Folio 22;

   (b)rights and interests validly granted by the Crown pursuant to statute or by any valid executive or legislative act affecting the native title of the common law holders; and

   (c)other rights and interests held by members of the public arising under the common law, including such rights and interests in relation to the waters of the Roper, Limmen Bight and Cox Rivers which are affected by the tide.

4. There is no native title right or interest in minerals and petroleum as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act (NT).

1. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 3 hereof and the rights conferred by other interests referred to in paragraph 4 hereof the native title rights and interests must yield to such other rights.

1. The native title rights and interests of the common law holders do not confer possession, occupation, use and enjoyment of the land and waters of the determination area on the common law holders to the exclusion of all others.

1. The native title rights and interest described in paragraph 3 hereof are subject to regulation, control, curtailment or restriction by valid laws of Australia.

1. The rights and interests from time to time comprising the native title are to be held by the common law holders.

1. Pursuant to s.57(2)(a) of the Native Title Act 1993 the Court requests that a representative of the common law holders nominate, in writing given to the Court with 6 months of the date of this determination, a prescribed body corporate to perform the functions mentioned in s.57(3) of the said Act.

1. Each party to the proceeding is to bear its own costs.

THE FIRST SCHEDULE

ALL THOSE areas of land and waters in the Northern Territory of Australia being:

(a)the whole of the area of land and waters formerly subject to Pastoral Lease 700 other than that part of the said area that was formerly the subject of Agricultural lease 153;

(b)the whole of the land described in Schedule 1 to the declaration of the routes for travelling stock published in the Northern Territory Government Gazette No S 83 on 26 November 1986 other than Northern Territory Portion 1185 (the stock route area);

(c)the bed, banks and waters of the Roper River between the eastern boundary of Northern Territory Portion 2632 and the Territorial Sea Baseline at the mouth of the river other than land which is Aboriginal land within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976; and

(d)the bed, banks and waters of the segments of the Limmen Bight River and the Cox River which area adjacent to either or both of Northern Territory Portion 819 and Northern Territory Portion 3476.

THE SECOND SCHEDULE

Native Title does not exist in the following parts of the determination area:

(a)Land and waters which are delineated as roads on the plan in Crown Lease Perpetual 346.

(b)The stock route area described in paragraph (b) of the First Schedule.

(c)The water of the segment of the Roper Limmen Bight and Cox River which are affected by the tide.

(c)Any area of land and waters on which a public work (as defined in s.253 of the Native Title Act) is or has been established and any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

By The Court

___________________

DISTRICT REGISTRAR

Date entered: