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Ngalpil v State of Western Australia  FCA 1140 (20 August 2001)
|Binomial Name:||Federal Court of Australia|
|Date:||20 August 2001|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Paruku (Lake Gregory) near Halls Creek, Western Australia, Australia|
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|The determination area comprises land and inland waters in the area of Lake Gregory (known as Paruku to the applicants) and Sturt Creek, approximately 120 kms due south of Halls Creek in the Kimberley Region of Western Australia. The Western Australian and Northern Territory border forms the eastern boundary. The determination area includes two pastoral leases (both held by Aboriginal Land Trusts), five Aboriginal reserves and several areas of unallocated Crown land, including a portion of the Canning Stock Route.|
|Legal Status:||Registered on the National Native Title Register|
|Legal Reference:||Federal Court No: WAG 160/1007 (or WAG 160 of 1997|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership | Exploration | Land Management | Land Use | Native Title - Extinguishment | Petroleum | Native Title|
|Ngalpil v State of Western Australia FCA 1140|
Between: Palmer Gordon Ngalpil, Sandy Cox, Rex John, Paraku (George Wallaby), David Skeen, Kilampi, Boxer Milgner, Ivy Robertson, Gracie Long, Clancy Sturt, Mona Green, Wirrimanu (Robert Rallah), Tomato Gordon, Bessie Doonday, Speeler Sturt, Veronica Lulu, Reggie Chungulla, Raymond Chungulla, Boxer Jalarku, Linda Yandanalli, Chamia Napurulla, Ned Cox Yanpiei And Violet Campbell Barangnali (APPLICANTS) AND
State of Western Australia and Premier of Western Australia, Shire of Halls Creek, Wirrimanu Aboriginal Corporation and Balgo Hills Aboriginal Community Inc, Anglogold Australia Ltd, Glengarry Mining NL and Glengarry Resources NL, Perilya Ltd, Tanami Gold NL and Telstra Corporation Ltd (RESPONDENTS)
Judge: Carr J.
Where: Paruku (Lake Gregory) near Mulan
Determination: Native title exists in relation to the Determination Area, other than in those areas referred to in paragraph 2. The Determination Area is the land and waters described in the First Schedule.
|The original native title application was lodged by members of the Tjurabalan People with the National Native Title Tribunal on 22 March 1996, before amendments were made to the Native Title Act 1993 (Cth) by the Native Title Amendment Act 1998 (Cth). In September 1997 the parties attempted mediation without success. Consequently, on 18 December 1997 the Registrar of the Tribunal lodged the application with the Federal Court for decision. Various directions hearings took place in 1998 and on 4 August 1999 a minor amendment was made to the application. The relationship between the parties subsequently appeared to improve and they were referred back to the Tribunal for further mediation. The mediation was not immediately successful, however Justice Carr suggested in the final consent determination that this mediation was the catalyst for the eventual settlement between the parties.|
The Court made further directions with a view to clarifying the precise matters in dispute between the parties. Orders were made which resulted in the filing of expert anthropological reports. When the case came on for hearing on 16 July 2001, the parties were close to settlement and, at the parties request, the hearing was adjourned until 17 July 2001 on which date it was reported that settlement negotiations had been successful and the parties had reached agreement.
The agreement recognised that native title exists in relation to the Determination Area and that the Tjurabalan people are the common law holders of that title. In turn the Tjurabalan people recognised that others parties have certain rights and interests in respect of the land within the Determination Area. The land is to be managed for the Tjurabalan People by a registered native title body corporate, the Tjurabalan Native Title Land Aboriginal Corporation which will either hold the land on trust for the Kiwirrkurra people or the corporate body will perform functions set out in the Native Title Act 1993. The Tjurabalan People were granted the right to posses, occupy, use and enjoy the land and waters to the exclusion of all others, except those whose rights and interests were recognised in the consent determination. The specific rights and interests of the native title holders are detailed in the orders of Justice Carr, and are deemed to be the communal or group rights which together comprise native title. As with the majority of consent determinations, the orders were made in respect of land which was either unallocated crown land, reserved land or land already held by, or for the benefit of, Aboriginal or Torres Strait Islander People. The order determined that native title had been wholly extinguished with respect to land and water within two Crown reserves.
There were a number of other interests in the claim area which were recognised by the consent determination. They include five reserves created for the 'use and benefit of Aboriginal inhabitants' under the Land Administration Act 1997, which are vested in the Aboriginal Lands Trust created under the Aboriginal Affairs Planning Authority Act 1972. In addition, there are two pastoral leases created pursuant to the Land Administration Act 1997 and held by the Aboriginal Lands Trust. These leases are held on trust for some members of the applicant group and the native title holders they represent.
Other interests include 45 exploration licences created under the Mining Act 1978 and a petroleum exploration permit granted under the Petroleum Act 1967. Telstra Corporation Limited also has interests in the land, which include facilities installed in the claim area and interests pursuant to the Post and Telegraph Act 1901, the Telecommunications Act 1975, the Australian Telecommunications Corporation Act 1989 and the Telecommunication Act 1991 and the Telecommunication Act 1997. In addition the rights and interests of the Telstra Corporation Limited are protected by a Deed of Agreement with the representatives of the native title holders.
The Crown and the State of Western Australia also hold interests pursuant to any statute or valid executive or legislative act which were current at the date of this determination, specifically including the Rights in Water and Irrigation Act 1914. The interests of the Crown and State prevail to the extent of any inconsistency with the rights and interests held by the native title claimants. In addition, the State of Western Australia and the Shire of Halls Creek retain the right to have access to the claim area in the bona fide performance of their duties, specifically the construction, maintenance and repair of certain roads and tracks in the claim area. Certain roads and tracks may also be accessed by any person, subject to the laws of the State. The rights and interest of the public arising under common law at the date of the determination also prevail to the extent of any inconsistency.
One issue remained in dispute at the time of the consent determination, whether the anthropological reports could be subject to confidentiality orders by the court. The terms of such an order and whether they were authorised under the relevant statutory provisions were in dispute. Justice Carr resolved the matter by granting confidentiality orders which followed those proposed by the State of Western Australia with the requirement that the native title holders are given notice and consulted regarding their use.
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