FEDERAL COURT OF AUSTRALIA

Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2)

[2016] FCA 908

ORDERS

THE COURT ORDERS THAT:

1.    There be a determination of native title in matters NTD 6014/2000 and 6003/2003 in the terms of the determination set out below.

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

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

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

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

4.    There be no order as to costs.

5.    The parties have liberty to apply for the following purposes:

(a)    to establish the existence of any public work (including any adjacent land or waters), as defined in the Native Title Act, that is said to fall within paragraph 10 of Schedule D to this determination;

(b)    to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the determination area referred to in Schedule D to this determination;

(c)    to establish the precise location of the boundaries of any land subject to the s 24KA notices referred to in paragraphs 17 and 18 of this determination; and

(d)    to determine whether, and the extent to which, any acts described under the s 24KA notices referred to in paragraphs 17 and 18 of this determination are wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests described in paragraphs 10, 11 and 12.

DETERMINATION OF NATIVE TITLE

THE COURT ORDERS AND DETERMINES THAT:

Existence of native title (s 225)

1.    The determination area is the land and waters described in Schedule A and depicted on the map comprising Schedule B (the determination area).

2.    Native title exists in those parts of the determination area identified in Schedule C being:

(a)    the areas of land and waters to which s 47A or s 47B of the Native Title Act applies, and more particularly described in item 1(a) of Schedule C (the exclusive areas);

(b)    the remaining areas of land and waters, being the areas more particularly described in item 1(b) of Schedule C (the non-exclusive areas).

3.    Native title does not exist in those parts of the determination area identified in Schedule D.

4.    In the event of any inconsistency between the description of an area in Schedule A and the depiction of that area on the map in Schedule B, the written description will prevail.

Native title holders (s 225(a))

5.    The native title is held by the persons described in Orders 6 - 9.

6.    The land and waters of the determination area comprise part of the estate held by the members of the Rrumburriya Borroloola group.

7.    The Rrumburriya Borroloola group includes persons who are members of the group by reason of:

(a)    patrilineal descent;

(b)    his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent;

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

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

8.    In accordance with traditional laws and customs, other Aboriginal people have rights and interests in respect of the determination area, subject to the rights and interests of the members of the Rrumburriya Borroloola group, such people being:

(a)    the members of the estate groups associated with neighbouring estates;

(b)    the spouses of the members of the Rrumburriya Borroloola group;

(c)    persons who were spiritually conceived on the estate of the Rrumburriya Borroloola group, but who are not members of that group.

9.    Each of the estate groups referred to in Order 8(a) includes persons who are members of the group by reason of:

(a)    patrilineal descent;

(b)    his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent;

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

The nature and extent of native title rights and interests (s 225(b), s 225(e))

10.    Subject to Orders 13 and 14, in relation to the exclusive areas the native title rights and interests possessed under traditional laws and customs are the rights of possession, occupation, use and enjoyment as against the whole world.

11.    Subject to Orders 13 and 14, in relation to the non-exclusive areas the native title rights and interests of the members of the Rrumburriya Borroloola group are the rights:

(a)    to access, remain on and use the areas;

(b)    to access and to take for any purpose the resources of the areas; and

(c)    to protect places, areas and things of traditional significance on the areas.

12.    Subject to Orders 13 and 14, in relation to both the exclusive and the non-exclusive areas the native title rights and interests of the persons referred to in paragraph 8 are the rights:

(a)    to access, remain on and use the areas;

(b)    to access the resources of the areas.

Qualifications on native title rights and interests (s 225(b), s 225(e))

13.    The native title rights and interests are exercisable in accordance with, and subject to:

(a)    the traditional laws and customs of the native title holders; and

(b)    the laws of the Northern Territory and the Commonwealth, including the common law.

14.    Notwithstanding anything in this determination, there are no native title rights and interests in:

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

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

(c)    such 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))

in the determination area as are wholly owned by the Crown.

The nature and extent of any other interests (s 225(c))

15.    The nature and extent of other rights and interests in relation to the determination area are those set out in Schedule E (other interests).

Relationship between native title rights and other interests (s 225(d))

16.    Except as otherwise provided for by law, the relationship between the native title rights and interests and the other interests is as follows:

(a)    the determination does not affect the validity of those other interests;

(b)    to the extent of any inconsistency between the other interests and the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but they have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

(c)    otherwise, the other interests co-exist with the native title rights and interests. To avoid doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

17.    The non-extinguishment principle applies to any water supply pipelines, sewerage pipelines and pump stations and electricity transmission lines validly constructed on Lots 797, 798, 800, 803, 804, 806, 807 or 808 Town of Borroloola by or on behalf of the Power and Water Corporation pursuant to a notice dated 28 April 2010 and provided to the Applicant under s 24KA of the Native Title Act.

18.    The non-extinguishment principle applies to any Global Navigation Satellite System base station validly constructed on part of Lot 797 Town of Borroloola by or on behalf of the Northern Territory pursuant to a notice dated 25 February 2014 and provided to the Applicant under s 24KA of the Native Title Act.

Definitions

19.    In this determination, unless the contrary intention appears:

“land” and “waters” respectively have the same meanings as in the Native Title Act;

“Native Title Act” means the Native Title Act 1993 (Cth);

“the Commonwealth” means the Commonwealth of Australia;

“the Northern Territory” means the Northern Territory of Australia.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Schedule A - Written description of the determination area

[See Order 1]

The determination area comprises all the land and waters within the external boundary of the Town of Borroloola - Gazette Number NTG35 dated 30/8/1972 as further described below, excluding Lot 828, being the areas shown generally on the map in Schedule B.

The Town of Borroloola is further described as all that piece or parcel of land near Borroloola in the Northern Territory of Australia containing an area of 2797 acres more or less: Commencing at the northernmost corner of the Town of Borroloola as notified in South Australian Government Gazette dated 10 September, 1885; thence by lines bearing 90 degrees 6000 feet; 180 degrees 10850 feet; 226 degrees 4340 feet; 270 degrees 6720 feet; 6 degrees 13960 feet; 90 degrees 2390 feet to the point of commencement.

Schedule B - Map of the determination area

[See Order 1]

The determination area comprises the areas of land and waters shown generally on the map below.

Schedule C - Areas where native title exists

[See Order 2]

Item 1(a) - the areas of land and waters in respect of which exclusive native title rights and interests exist

[Areas referred to in Order 2(a)]

The parts of the determination area to which s 47A or s 47B of the Native Title Act applies are the lots in the Town of Borroloola set out in the table below.

In the table “(part)” signifies that native title has been extinguished over part of the lot by a public work or that s 47A or s 47B applies to some, but not all, of the lot. The public works that have extinguished native title are set out in the table at paragraph 8 of Schedule D and include the roads described in paragraph 9 of Schedule D.

In the table “(excluding McArthur River)” signifies that only non-exclusive native title rights and interests exist over that part of the lot comprising the McArthur River below the mean high water mark of the ebb and flow of the tides.

Item 1(b) - the areas of land and waters in respect of which non-exclusive native title rights and interests exist

[Areas referred to in Order 2(b)]

In this item, “(part)” signifies that native title has been extinguished over part of the lot by a public work. The public works that have extinguished native title are set out in the table at paragraph 8 of Schedule D and include the roads described in paragraph 9 of Schedule D.

The parts of the determination area in respect of which non-exclusive native title rights and interests exist are the following lots in the Town of Borroloola:

1.    Lot 334 (part);

2.    Lot 344 (part);

3.    Lot 468 (part only, being that part covered by OL 3279 and not the subject of any public work);

4.    Lot 490 (part only, being that part covered by OL 3279 and not the subject of any public work);

5.    Lot 491 (part only, being that part covered by OL 3279 and not the subject of any public work);

6.    Lot 492 (part only, being that part covered by OL 3279 and not the subject of any public work);

7.    Lot 493 (part only, being that part covered by OL 3279 and not the subject of any public work);

8.    Lot 494 (part only, being that part covered by OL 3279 and not the subject of any public work);

9.    Lot 499 (part);

10.    Lot 595 (part only, being that part covered by OL 3261 and not the subject of any public work);

11.    Lot 626 (part);

12.    Lot 764;

13.    Lot 765;

14.    Lot 803 (part only, namely (i) that part covered by OL 3384 and not the subject of any public work; (ii) that part comprising Rocky Creek below the mean high water mark of the ebb and flow of the McArthur River (being that part of Rocky Creek from its junction with the McArthur River to a point about 500 metres to the east) and (iii) that part comprising the McArthur River below the mean high water mark of the ebb and flow of the tides;

15.    Lot 804, (part only, namely that part comprising the McArthur River below the mean high water mark of the ebb and flow of the tides;

16.    Lot 805, (part only, namely that part comprising the McArthur River below the mean high water mark of the ebb and flow of the tides;

17.    Lot 806, (part only, namely that part comprising the McArthur River below the mean high water mark of the ebb and flow of the tides;

18.    Lot 807 (part only, being that part covered by OL 3279 and not the subject of any public work);

19.    Lot 808, (part only, namely that part comprising the McArthur River below the mean high water mark of the ebb and flow of the tides;

20.    Lot 809;

21.    Lot 820 (part only, being that part covered by OL 3261 and not the subject of any public work);

22.    Lot 821.

Schedule D - Areas where native title does not exist

[See Order 3]

Native title rights and interests do not exist in the following areas of land and waters:

1.    The whole of each of the following lots in the Town of Borroloola, which have been the subjects of grants of estates in fee simple: 297,305, 307, 309, 311, 313, 321, 325, 329, 339, 343, 345, 347, 349, 350, 353, 355, 357, 359, 360, 361, 363, 367, 368, 369, 370, 371, 373, 374, 375, 376, 377, 378, 385, 392, 393 396, 397, 398, 531, 534, 562, 555, 565, 568, 588, 640, 676, 696, 697, 698, 699, 700, 701, 702, 703, 704, 705, 706, 768, 771, 772, 774, 777, 780, 781, 810, 814, 830 and 831.

2.    The whole of each of the following lots in the Town of Borroloola, which have been the subjects of grants of estates in fee simple to the Borroloola Community Government Council: 382, 383, 384, 386, 387, 390, 391, 681, and 779.

3.    The whole of each of the following lots in the Town of Borroloola, which have been the subjects of grants of Crown Lease Perpetual Leases: 783, 784, 796, 832 and 833.

4.    The whole of Lot 812 and Lot 813 in the Town of Borroloola, each of which was the subject of a grant of a Crown Lease Term.

5.    The whole of Lot 644 and Lot 770 in the Town of Borroloola, each of which was the subject of a grant of a Crown Lease Perpetual to the Borroloola Community Government Council.

6.    The whole of each of the following lots in the Town of Borroloola, which have been the subjects of grants of Leases of Town Lands: 409, 530, 535, 538, 539, 540, 541, 542, 543, 544, 547, 548, 554, 556, 557, 558, 559, 560, 561, 563, 564, 566, 567, 569, 570, 571, 572, 573, 574, 576, 577, 578, 581, 582, 583, 584, 585, 586.

7.    The whole of each of the following lots in the Town of Borroloola upon which public works have been constructed: 330, 332, 346, 348, 351, 352, 354, 356, 358, 362, 364, 365, 366, 372, 379, 455, 463, 464, 496, 497, 527, 546, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 621, 622, 623, 624, 625, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 646, 673, 674, 677, 685, 687, 688, 689, 690, 775, 778, 792 and 793.

7A.    The whole of Lot 920.

8.    Parts of the lots in the Town of Borroloola set out in the table below.

The parts of these lots where native title is extinguished are: 1) the parts where the public works set out in the table below have been constructed; and 2) 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.

9.    The following roads in the Town of Borroloola:

The distances given above in metres in relation to some roads reflect the widths of the respective road corridors and the extent of the adjacent area relevant to those roads within the meaning of s 251D of the Native Title Act.

The following public roads:

Garawa “A” Town Camp Road (as depicted on the “Roadworks and Services Plan Garawa 1” dated 4 September 1991)

Garawa “B” Town Camp Road (as depicted on the “Roadworks and Services Plan Garawa 2” dated 4 September 1991)

Yanyula Town Camp Road (as depicted on the “Roadworks and Services Plan Yanyula” dated 4 September 1991)

10.    Those parts of the determination area not identified in paragraphs 7, 7A, 8 or 9 above, if any, on which there exists a public work (including any adjacent land or waters), as defined in the Native Title Act, which was validly constructed, established or situated prior to 23 December 1996 or commenced to be constructed, established or situated on or before that date.

11.    The whole of Lot 828 in the Town of Borroloola in respect of which native title rights and interests have been surrendered under an Indigenous Land Use Agreement.

Schedule E - Other Interests

[See Order 14]

The nature and extent of other interests in relation to the determination area as they exist at the date of this determination as follows:

(a)    the rights and interests of Telstra Corporation Limited:

(i)    as the owner or operator of telecommunications facilities within the determination area;

(ii)    created 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), including rights:

(a)    to inspect land;

(b)    to install and operate telecommunications facilities; and

(c)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(iii)    for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the determination area, in the performance of their duties; and

(iv)    under any license, access agreement or easement relating to its telecommunications facilities in the determination area;

(b)    the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);

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

(d)    the rights of any employee, servant, agent or instrumentality of the Northern Territory in relation to the drainage easement over part Lot 597 as depicted on Survey Plan S81/226;

(e)    the rights of the Power and Water Corporation, its employees, agents or contractors in relation to the following:

(i)    a water supply easement on Lots 769 and 770 as depicted on Survey Plan S85/49;

(ii)    a water supply easement on Lot 773 as depicted on Survey Plan S85/52;

(iii)    various water, electricity and access easements on Lot 789 as depicted on Survey Plan S89/374A;

(iv)    a water supply easement on Lot 790 as depicted on Survey Plan S89/364B;

(v)    a water supply/pipeline easement on Lot 825 as depicted on Survey Plans S81/216 and S99/304.

(f)    Rights and interests held by reason of the force and operation of the Water Act (NT);

(g)    the interests of persons to whom valid and validated rights and interests have been:

(i)    granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or

(ii)    otherwise conferred by statute.

REASONS FOR JUDGMENT

MANSFIELD J:

1    On 30 June 2016, I published reasons for judgment in this matter relating to the main two areas in dispute: Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776 (the Reasons).

2    The principal issue in contention was a limited one. It was as to the extent of the right claimed to take resources from the area, and the right related to control access to and use of the claim area. The contest was whether those acknowledged rights were limited to personal purposes of a domestic or subsistence nature or were exercisable for any purpose, including commercial or business purposes.

3    After a lengthy hearing, and careful consideration of the issues, I decided that the right to access and take resources from the claim area by the estate group members is an unrestricted one, and in particular is not restricted to taking for personal purposes of a domestic or subsistence nature only.

4    The second part of the decision concerned issues of extinguishment.

5    I did not make formal orders at the time. I acceded to the suggestion of the parties that they should prepare a determination with the necessary detail to give effect to them.

6    The parties have now done so. It is reflected in the Order which I now propose to make. The Order recognises the Rrumburriya Borroloola claim group, through its various estate groups, as the holders of native title rights and interests in the Town of Borroloola in the terms of the agreed acknowledgment of the parties, and in relation to that principal issue as determined by the Court. The proposed order also gives effect to the reasons for decision on extinguishment and incorporates them into the terms of the order. I am grateful for the cooperative way in which the parties, through their representatives, have been able to reach that consensus in the light of the Reasons.

7    Accordingly, I now formally make Orders recognising the Rrumburriya Borroloola claim group as the holders of native title in the Town of Borroloola both at the time of sovereignty and through the period of European contact to the present time, in terms of the Orders with these brief reasons.

Associate:

Dated:    11 August 2016