Editors --- "The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia and Conservation Land Corporation - Case Summary" [2004] AUIndigLawRpr 12; (2004) 8(4) Australian Indigenous Law Reporter 52
Court and Tribunal Decisions - Australia
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia and Conservation Land Corporation
Federal Court of Australia (Mansfield J)
23 April 2004
Native title — application for determination — whether the claimants had a connection with the claim area at the time of sovereignty, and if so, whether this connection has continued since sovereignty — whether the applicants constitute a single community — rights claimed accepted as not exclusive — whether the rights and interests claimed have been extinguished (either totally or partially) by the granting of various non-exclusive pastoral leases and grazing licences where the leases contained reservations protecting some rights of the Aborigines — whether the rights and interests claimed have been extinguished (either totally or partially) by the granting of a crown lease perpetual, with the intention that this land become a national park and camping ground — whether the rights and interests claimed have been extinguished (either totally or partially) by the undertaking of ‘public works’, such as building roads, barbeques and interpretive panels and shelters
Facts:
The Alyawarr, Kaytetye, Warumungu, Wakay Native Title group (the claim group) made a Native Title application in relation to an area of land and waters south south-east of Tennant Creek in the Northern Territory.
The claim group consists of seven different landholding groups, each associated with a separate part of the claim area. The applicants claimed that these groups collectively formed an identifiable Aboriginal community.
Pastoral leases and a Crown Lease Perpetual had previously been made over the claim area, and there had also been some public works on the land.
Held, upholding the application:
1. A claim group consisting of several language or tribal groups, each associated with a separate part of the claim area, may constitute an identifiable community. The fact that there may be different individual rights in respect of different parts of the claim area does not mean that the claim group does not enjoy communal rights and interests over the claim area [130]–[131]. Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 considered; Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 referred to.
2. In this case, there is a substantial degree of ancestral connection between the original native title holders at sovereignty and the present community. Further, the claim group’s traditional laws and customs involve the exercise and assertion of a right to control access of others to the claim area. The claim group does enjoy native title rights to the land and waters comprising the claim area, subject to the extinguishment issues set out below [136], [157], [164], [328].
3. Pastoral leases may have a cumulative effect, and native title rights and interests not extinguished by one grant may be extinguished by a later grant. However, subsequent pastoral leases would have no additional extinguishing effect if there had been a previous pastoral lease granted in similar terms [226]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 considered.
4. Native title rights to control access to a claim area and to make decisions about its use are not so inconsistent with rights under pastoral leases as to lead to their total extinguishment. The right to make such decisions is extinguished only to the extent that it is inconsistent with the rights of a pastoral lessee to make decisions concerning those matters [274]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 applied.
5. The grant of the Crown Lease Perpetual 01117 was invalidated by s 10(1) of the Racial Discrimination Act 1975 (Cth). The non-extinguishment principle therefore applies, as explained in s 238 of the Native Title Act 1993 (Cth) [286]–[287]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 applied.
6. Native title is extinguished in respect of areas on which there are public works [299].
7. Various other right and interests, such as rights and interests granted by the Crown and the interests of members of the public with statutory rights of access, co-exist with the native title rights. To the extent that these are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist. However, the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency, for so long as the other rights and interests exist [328].