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James on behalf of the Martu People v Western Australia  FCA 1208 (27 September 2002)
|Binomial Name:||Federal Court of Australia|
|Date:||27 September 2002|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Perth, Western Australia, Australia|
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|All those Lands and Waters commencing at a point of Latitude 20.748626 South, Longitude 121.001321 East and extending easterly and generally south-easterly passing through the following co-ordinate positions: LATITUDE (SOUTH) 20.748621 21.165289 21.498624 21.498617 21.081941 21.498604 21.998602 LONGITUDE (EAST) 122.751315 123.167985 123.167988 124.001319 124.667979 125.501314 126.001316 Thence southerly to the westernmost north-western corner of Special Lease 3116/10897; Thence southerly along the western boundary of that special lease to Latitude 23.498607 South; Thence south-westerly, westerly, northerly, again westerly, southerly, and again westerly passing through the following co-ordinate positions: LATITUDE (SOUTH) 23.998615 23.998626 23.790293 23.790302 23.998637 23.998656 LONGITUDE (EAST) 125.001343 124.003581 124.003578 123.001347 123.001349 120.508828 Thence north-easterly to a southern boundary of Pastoral Lease 3114/1255 (Weelarrana) at Longitude 120.568181; Thence easterly and northerly along boundaries of that pastoral least to Latitude 23.751355 South; Thence north-easterly to a southern boundary of Reserve 41265 at Longitude 120.696113 East; Thence easterly, northerly and westerly along boundaries of that reserve to the south-eastern corner of Pastoral Lease 3114/659 (Robinson Range); Thence northerly along the eastern boundary of that pastoral lease to Latitude 23.497899 South; Thence north-easterly to Latitude 23.405146 South, Longitude 120.971036 East; thence north-easterly to a southern boundary of Pastoral Lease 3114/977 (Balfour Downs) at Longitude 121.145159 East; Thence easterly, northerly and westerly along boundaries of that pastoral lease to Longitude 121.221018 East; Thence north-easterly to Latitude 22.843118 South, Longitude 121.229854 East; Thence north-easterly to a southern boundary of Pastoral Lease 3114/977 (Balfour Downs) at Longitude 121.255422 East; Thence easterly and northerly again along boundaries of that pastoral lease to Latitude 22.690004 South; Thence generally north-easterly and northerly along boundaries of that reserve to Latitude 22.267179 South; thence north-easterly to Latitude 22.185703 South, Longitude 121.407723 East; Thence north-westerly to a western boundary of Reserve 12297 at Latitude 22.176991 South; Thence generally northerly again along boundaries of that reserve to Latitude 20.998625 South; thence westerly to Latitude 20.998627 South, Longitude 121.001324 East; thence northerly back to the commencement point. Exclusions from the determination area are in accordance with the Native Title Act 1993 (Cth) and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA))because they are areas where previous exclusive possession acts have occurred and native title has been completely extinguished in the whole of these areas. These areas include certain Reserves and Public Works. Areas in which no determination of native title is made include areas of mining leases and general purposes leases granted prior to 1 January 1994. Furthermore, no determination was made over the area known as the Rudall River National Park, or the area of the Telfer Telephone Exchange. There are a number of other interests in relation to the determination area including existing mining tenements under the Mining Act 1978 (WA) , the interests of Telstra Corporation, State Agreement Act interests, and other rights and interests. The determination also acknowledges the native title rights of the Ngurrara People who will share interests with the Martu People over a 5,652 square kilometre area around the Percival Lakes region.|
|Legal Status:||Registered on the National Register of Determinati|
|Legal Reference:||Federal Court File No; WG6110/98 National Native|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership|
|James on behalf of the Martu People v State of Western Australia  FCA 1208|
Between: Jeffrey James, Teddy Biljabu, Billy Dunn, Neil Pitu aka Bidu, Nancy Taylor, Nancy Paterson, Kevin Fred, Pincher Rubin, Frank French, Pukina Burton, Tommy Watson, Lindsay Hardcase, Roley Williams aka Rowley, Colin Peterson, Ben Odapanie aka Oolaparnie, Grant Judson, Mack Gardiner, Lola Walker, Kenny Thomas, Dulcie Gibbs and Patricia Fry for the Martu People (APPLICANTS) AND
Newcrest Mining Ltd., Rio Tinto Exploration Pty. Ltd., Straits Resources Ltd., Shire of Wiluna, Telstra Corporation Ltd., Mount Burgess Mining NL, Kimberley Land Council Aboriginal Corporation, and Annette Kogolo, Butcher Wise, Charlie Nundun, Harry Yungabun, Hitler Pamba, Highie Bent, Ivan McPhee, Jimmy Nerrima, Jimmy Pike, Joe Brown, Lucy Cubby, Mona Chugana, Percy Bulagardie, Peter Clancy, Peter Skipper, Ronni Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman and Wilfred Steele on behalf of the Ngurrara People (RESPONDENTS)
Judge: French J
Native title exists in the determination area.
|On 26 June 1996, an application for a native title determination was lodged with the National Native Title Tribunal on behalf of the Martu People. The application originally covered over 219,000 square kilometres of land in the western desert of the Pilbara region. The land subject to the application was mainly unallocated crown land.|
After lodgement of the application with the National Native Title Tribunal a lengthy negotiation and mediation process commenced. In September 1998, the application became a proceeding in the Federal Court. Mediation and negotiation was however continued.
After a long process, an agreement was reached between the parties over part of the area covered by the original application. The court gave effect to the agreement on 27 September 2002, noting that it had the power to do so under section 87 of the Native Title Act 1993 (Cth), and that it was satisfied that the agreement was appropriate. An area of 136,000 square kilometres was granted to the Martu People by the determination. Native Title rights of the Ngurrara People were also acknowledged as co-existing over a 5,652 square kilometre area around the Percival Lakes region. Other interests recognised in the determination area included: existing mining tenements under the Mining Act 1978 (WA); the interests of Telstra Corporation; State Agreement Act interests; public rights at common law; access rights held by state and commonwealth instrumentalities; and rights of public access.
The remaining areas of land, including the Rudall National Park, unvested reserves, some mining leases and general purpose leases were excluded from the determination to take account of the decision in Western Australia v Ward  HCA 28. Most of this remaining area will be the subject of further negotiations.
BACKGROUND TO THE DETERMINATION
The determination was the result of the Martu People's long held struggle to gain recognition of their traditional rights to their country. In the 1940s, the communities in the western desert resisted the fragmentation and displacement that began with white settlement. In 1946 approximately 500 Aboriginal workers walked off pastoral stations across the Pilbara protesting against the conditions and treatment in the pastoral industry. Some workers, however, remained on the stations and became part of a group known as 'McLeod's Mob', led by prospector and miner, Don McLeod. The division that was consequently created amongst the Martu People continued for many years to follow.
Since 1976, when a conservation reserve was proposed near the culturally significant Durba Hills, the Martu People have fought for title to their country. Initially there were competing claims to the land, and after the Native Title Act commenced in January 1994, eight native title applications were lodged over the area. Seven were later withdrawn following mediation between the claimant groups and in 1998, an agreement was signed to work as a united group.
Mediations continued between other parties and the united claimant group until an agreement was made and court orders were given in relation to the specified area of land in 2002.
|THE COURT MAKES THE FOLLOWING ORDERS: |
1. With respect to those areas comprising the areas of mining leases and general purpose leases granted prior to 1 January 1994, current unvested reserves, the area of Reserve 34607 for the purpose of a "National Park" vested pursuant to section 33 of the Land Act 1933 (WA) in the National Parks and Nature Conservation Authority on 22 April 1977, including the area of unallocated Crown land which was excised from Reserve 34607 by notice published in the Government Gazette on 15 July 1994, and the area of the Telfer Telephone Exchange Longitude 122.224657 Latitude 21.694740, set out in, and hatched purple on the plan attached to, the First Schedule of the Determination of Native Title, no determination is made.
2. The Court, being satisfied that a determination of native title in the terms set out in the attached Determination of Native Title would be within the power of the Court and, it appearing to the Court, appropriate to do so, the Court, pursuant to section 87(3) of the Native Title Act 1993 (Cth) and by the consent of the parties, makes the Determination of Native Title accordingly.
3. Within three months of the date these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and if so by whom, by:
(a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
(b) including within the nomination the written consent of the prescribed body corporate.
4. If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 2 in trust for the common law holders of the native title rights and interests.
5. If a prescribed body corporate is not nominated in accordance with order 3, the native title rights and interests described in order 2 will be held by the common law holders (as defined in the determination) in respect of the determination area as the common law holders of the native title rights and interests.
6. If a prescribed body corporate is not nominated in accordance with order 3, and native title is therefore held by the common law holders in accordance with order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act 1993 (Cth).
7. Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the common law holders may be served upon the Ngaanyatjarra Council Aboriginal Corporation and the Kimberley Land Council Aboriginal Corporation, and such service shall be deemed to be sufficient.
8. There be liberty to any party to apply on 7 days written notice.
9. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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