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Hayes on behalf of the Thalanyji People v The State of Western Australia [2008] FCA 1487 (18 September 2008)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 18 September 2008
Sub Category:Consent Determination (Native Title Act)
Location:Pastoral land in the Shire of Ashburton, as well as some land in and around the Onslow townsite and port area, Western Australia, Australia
The determination area is contained in Schedule 1 of the Federal Court consent determination.
Legal Status: Registered on the National Native Title Register (of native title determinations).
Legal Reference: Federal Court no.: WAD6113/1998; National Native Tribunal file no.: WC99/45.
Alternative Names:
  • Thalanyji
  • Subject Matter:Land Use | Native Title
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1487.html
    Summary Information:
    Leslie Hayes & Ors on behalf of the Thalanyji People v The State of Western Australia

    Between: Leslie Hayes & Ors on behalf of the Thalanyji People (APPLICANTS)

    AND

    The State of Western Australia (RESPONDENTS)

    Judge: North J

    Where Made: Onslow

    Determination: Native title exists in relation to part of the determination area. The consent determination confers the applicants non-exclusive rights to use and enjoy the land, subject to other rights and interests.

    Detailed Information:
    Background Information

    This consent determination consists of two applications which were combined on 10 November 1999, and concerns 18,432 square kilometres of land and waters in the Pilbara region, near Onslow, Western Australia. The area covers 13 pastoral leases, including Urala in the north and Glen Florrie in south, Ashburton River, Cane River Conservation Park, the town of Onslow, the abandoned 'Old Onslow' townsite, unallocated crown land, and sea and a group of islands extending northwest to Airlie Island. The 'predominant physical features of the area… are alluvial, Spinifex-covered plains and contrasting sandstone ranges and granite outcrops' (Justice North).

    The parties agreed to dismiss the application with regards to:
  • three areas which overlap with other native title applications;
  • the sea component of the claim; and
  • the north eastern coastal component east of Onslow townsite and Onslow Road (this is most likely Nhuwala country).

    Justice North recognised the adaptation of Thalanyji land holding systems from a patrilineal system to more 'generalised rights to Thalanyji country', and emphasised that a flexible approach was needed in establishing preservation of connection to land.

    Five Indigenous Land Use Agreements (ILUAs) dealing with 'practical co-existence issues between native title holders and pastoralists' were due to be registered immediately after the consent determination (NNTT Media Release). Parties involved in the negotiations have included:
  • the Puutu Kunti Kurrama People;
  • the Pinikura People;
  • the Thudgari People;
  • the State and Commonwealth governments;
  • the Shire of Ashburton;
  • pastoralists from Mt Stuart, Red Hill, Wyloo, Yanrey, Nyang (Emu Creek), Minderoo, Glenforrie and Koondarrie stations;
  • Onslow Salt;
  • CEMEX Australia;
  • The Western Australian Fishing Industry Council;
  • MG Kailis Gulf Fisheries;
  • Exmouth Pearls;
  • Apache Northwest;
  • Apache Oil Australia;
  • BHP Billiton Petroleum;
  • Carnarvon Petroleum;
  • Chevron Australia;
  • Santos (BOL);
  • Santos Offshore;
  • Strike Oil; and
  • Telstra.

    The applicants were not represented by the Pilbara Native Title Service, which is the NTRB for the region. They were represented by law firm Corser & Corser.

    Native Title Rights and Interests

    Native title exists in relation to the land and waters in Schedule 1, conferring the native title holders non-exclusive rights to:
  • enter, travel through and remain on the land;
  • camp and erect temporary shelters;
  • hunt, fish, gather and use 'traditional resources' of the land;
  • take and use water (excluding water captured by the holders of the pastoral leases);
  • take ochre (but no other minerals and petroleum);
  • perform rituals and ceremonies; and
  • maintain and protect sacred sites and objects (NNTT Extract from the National Native Title Register, paragraph 5)

    Native title is extinguished in the land and waters identified in Schedule 2.

    These rights are exercisable subject to the laws of the state and in accordance with the traditional laws of the claimants, for 'personal, domestic and non-commercial communal purposes' (NNTT Extract, paragraph 6).

    They are subject to other rights and interests, including the rights and interests held over various reserves, pastoral leases, mining tenements, petroleum interests and the rights of Telstra Corporation Ltd (set out in Schedule 3).

    The land is to be held in trust by Buurabalayji Thalanyji Aboriginal Corporation.


  • Related Entries

    Agreement
  • Thalanyji and Yanrey Pastoral Indigenous Land Use Agreement (ILUA)
  • Thalanyji and Koordarrie Pastoral Indigenous Land Use Agreement (ILUA)
  • Thalanyji and Nyang (Emu Creek) Pastoral Indigenous Land Use Agreement (ILUA)
  • Thalanyji and Minderoo Pastoral Indigenous Land Use Agreement (ILUA)
  • Thalanyji and Glen Florrie Pastoral Indigenous Land Use Agreement (ILUA)
  • Onslow Indigenous Land Use Agreement (ILUA)
  • Macedon Indigenous Land Use Agreement (ILUA)
  • Thalanyji and Uaroo Station Indigenous Land Use Agreement (ILUA)
  • Thalanyji and Nanutarra Station Indigenous Land Use Agreement (ILUA)
  • Organisation
  • State of Western Australia - Respondent
  • Buurabalayji Thalanyji Association Inc
  • Telstra Corporation Limited
  • Strike Oil NL
  • Chevron Corporation
  • BHP Petroleum
  • Exmouth Pearls Pty Ltd
  • Western Australian Fishing Industry Council (Inc)
  • Ashburton Shire
  • Commonwealth of Australia
  • Santos Offshore Pty Ltd
  • Bridge Oil Ltd
  • Carnarvon Petroleum Ltd
  • Apache Energy Ltd
  • MG Kailis Gulf Fisheries Pty Ltd
  • CEMEX Australia Pty Ltd
  • Onslow Salt Pty Ltd
  • Corser & Corser Lawyers
  • Buurabalayji Thalanyji Aboriginal Corporation
  • Murion Cattle Company Pty Ltd
  • People
  • Thalanyji People - Native Title Applicants
  • Pinikura People
  • Puutu Kunti Kurrama People
  • Leslie Hayes & Ors on behalf of the Thalanyji People - Native Title Applicants
  • Thudgari People
  • Rory Joseph de Pledge
  • Peter Robert Grey and Susan Jean Grey

  • References

    Agreement
    Federal Court of Australia (18 September 2008) Native Title Determination: Thalanyji People
    Article
    Office of Native Title (WA) (October 2008) E-Newsletter: Thalanyji Native Title Determination
    Case Law
    Federal Court of Australia (10 October 2008) Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 (18 September 2008)
    Media Release
    National Native Title Tribunal (18 September 2008) Thalanyji People Hear Determination in Onslow
    Western Australian Fishing Industry Council (WAFIC) (18 September 2008) Thalanyji Native Title Determination
    Resource
    National Native Title Tribunal (18 September 2008) WA - Native Title Determination Summary - Thalanyji
    National Native Title Tribunal (25 September 2008) Application Information and Extract from the Register of Native Title Claims
    National Native Title Tribunal (18 September 2008) Extract from the National Native Title Register
    National Native Title Tribunal Thalanyji Consent Determination Background Information

    Documents

    Map
    Leslie Hayes & Ors on behalf of the Thalanyji People - Determination Area Map - ( PDF)

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia)

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