Besanko J
This was a native title determination, made by consent, in favour of the Ilperrelhelam, Malarrarr, Nwerrarr, Meyt, Itnwerrengayt and Ampwertety Landholding Groups. The determination area covers the Lake Nash and Georgina Downs pastoral properties in the Northern Territory, near its border with Queensland.
Decision
Besanko J considered the principles that govern the Court’s role in making consent determinations under s 87 Native Title Act 1993 (Cth) (NTA). His Honour noted the purpose of s 87 NTA was to encourage parties to resolve claims by agreement, and that it should be applied flexibly. The Court is not required to examine the factual basis of the agreement; instead, the primary focus is whether the agreement was freely made on an informed basis. This may require the Court to be satisfied that the government respondent has taken steps to confirm that there is a credible basis for the claim. Besanko J examined the process the Territory had gone through in assessing the evidence in support of the claim, and considered that the process had been sufficiently thorough. He noted that it is common ground between the parties that the members of the respective landholding groups have a traditional and continuing spiritual, physical and cultural connection to the claim area.
Rights and interests
The native title rights and interests recognised in the determination are non-exclusive possession rights including the right to access the area; to live on the area (including camping and erecting shelters and other structure); hunting, fishing and gathering; taking and using the natural resources; to take and use natural waters (except for water captured by the pastoralists); to light fires (but not for clearing vegetation); to conduct ceremonies and other activities on the land; and to share or exchange natural resources obtained on or from the land and waters. An additional right recognised was the ‘right to speak for and make decisions about the use and enjoyment of the land and waters by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders’. The determination identifies those areas where it was agreed that native title was extinguished because of pastoral improvements such as homesteads, airstrips, and stockyards; and public works, such as public roads, gravel pits, and pipelines.
Ilperrelhelam Aboriginal Corporation was nominated as the prescribed body corporate for the purposes of section 57(2) NTA.