In this matter, White J upheld a consent determination of native title, agreed between the Northern Territory and the Alawa/Ngandji people. Non-exclusive native title rights and interests were recognised over the land and waters covering the Hodgson River Pastoral Lease in the Northern Territory, approximately 1,110 km2 in size. The Top End Aboriginal Corporation was appointed to hold the native title on a non-trust basis.
Background
In 2013, the applicant filed a native title determination application over the area. The applicant consisted of five estate groups associated with the Alawa language group, part of the Alawa/Ngandji wider regional cultural bloc. These groups share traditional laws and customs but have particular country within the lease area.
The applicant and the Northern Territory reached a determination by consent, as per s 87 of the Native Title Act 1993 (Cth), and filed the agreement. The agreement provided for non-exclusive native title rights and interests to access and use the area and resources, and non-exhaustively listed permitted activities. These included rights to travel, hunt, gather, live and camp, practice culture and maintain significant sites. The native title is held by members of the five estate groups. Unusually, membership of such groups is determined by patrilineal descent or adoption. Other interests (Telstra, other Aboriginal lease holders, governmental access) were held to prevail but not extinguish the native title.
Decision
While J emphasised that the Court does not grant native title, but gives effect to the agreement and formally recognises that native title has always existed. Although precedent allows the Court to rely on the agreement, His Honour noted that evidence can be considered to assess whether the State or Territory acted in good faith and rationally. Here, the evidence was deemed to demonstrate that the Territory had acted accordingly and the consent determination was granted.