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Hayes on behalf of the Thalanyji People v The State of Western Australia  FCA 1487 (18 September 2008)
|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|
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|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.|
|Subject Matter:||Land Use | Native Title|
|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)
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.
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:
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 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:
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.
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