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Kogolo v State of Western Australia [2007] FCA 1703 (9 November 2007)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 9 November 2007
Sub Category:Consent Determination (Native Title Act)
Location:Great Sandy Desert, Western Australia, Australia
The determination area is located in the Kimberley region of Western Australia. It is located in the vicinity of the Great Sandy Desert between the Southern extent of the Kimberley pastoral leases and the Percival lakes. The determination area covers approximately 77,810 square kilometers in total.
Legal Status: Registered on the National Native Title Register (of native title determinations)
Legal Reference: Federal Court No: WAD6077/1998; National Native Title Tribunal No: WC96/32.
Alternative Names:
  • Ngurrara Part A
  • Subject Matter:Fishing | Land Use | Native Title
    URL: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1703.html
    Summary Information:
    Between: Annette Kogolo, Butcher Wise, Lucy Cubby, Charlie Nundun, Harry Yungabun, Hitler Pamba, Hughie Bent, Ivan McPhee, Jimmy Nerrima, Joe Brown, Wilfred Steele, Mona Chuguna, Percy Bulagardie, Peter Clancy, Peter Skipper, Ronnie Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman and Jimmy Pike (APPLICANTS) and State of Western Australia, Shire of Derby/West Kimberley and The Martu People (RESPONDENTS)

    Judge: Gilmour J
    Where made: Pirnini, Western Australia

    Determination:

    Native title exists in the entire determination area

    The native title holders are the Ngurarra People. The native title rights are held communally by the Ngurrara people.

    The exclusive native title rights and interests include the right to possess, occupy, use and enjoy the land and waters.

    The non-exclusive native title rights and interests include the right to take and use the subterranean waters as well as hunt, fish and gather in those waters.

    The non-native title rights and interests include licences, permits, rights of employees of the State and public access rights to certain parts of the determination area.

    This determination is conditional on the determination of a prescribed body to manage the native title rights and interests of the native title parties. This occurred on 22 November 2010, when the Yanunijarra Aboriginal Corporation was determined as the prescribed body corporate for the Ngurrara people.
    Detailed Information:
    Details of judgment

    The determination area is located in the Kimberley region of Western Australia on the northern boundary of the Great Sandy Desert between the Kimberley pastoral leases and the Percival lakes. It is an area comprised of about 77,810 square kilometers with the majority being unallocated crown land.

    The Ngurrara people hold native title rights and interests to possess, occupy, use and enjoy the land and waters in the determination area to the exclusion of all others.

    In relation to flowing and subterranean waters, the Ngurarra people have the right to hunt from the waters and take the waters for non-commercial purposes, but not to the exclusion of others.

    The native title rights outlined above include the right to take and use ochre. Native title rights do not however entitle the Ngurrara People to take and use materials defined as 'minerals' or 'petroleum' under various legislation.

    These native title rights are exercisable in accordance with the laws of the State and the Commonwealth.

    The non-native title rights that exist in relation to the determination area include interests under the Petroleum Act 1967 (WA), licences and permits granted for the area, rights under the force of the Rights in Water and Irrigation Act 1914 (WA) the rights of employees of the State in the performance of their duties, the right of access to certain roads and the Canning Stock Route and public access and enjoyment of waterways, beds and banks of foreshores and stock routes.

    Gilmour J found that the parties had independent legal representation, that the State had partaken in negotiation and that it was therefore within the power of the court to make the determination.

    Background

    This consent determination concerned Part A of the Ngurrara People's native title claim (Federal Court File No: WAD6077/1998; National Native Title Tribunal No: WC96/32). This claim was filed with the Federal Court on 30 September 1998. Through a process of mediation, the parties reached an agreement as to the pre-existing native title rights and interests of the claimants. The negotiating parties included the Ngurrara People, the State of Western Australia, the Shire of Derby/West Kimberley and the neighbouring Martu People (who also hold native title).

    Part B of the Ngurrara People's native title claim (Federal Court File No: WAD281/08; National Native Title Tribunal No: WC08/3) is yet to be determined. This claim covers a further 1,721 square kilometres of land in the Kimberley Region. It specifically regards land that is either reserve or former reserve land. The claim was filed with the Federal Court on 3 December 2008, following a decision in 2007 to split up the Ngurrara claim into two separate claims. At the time that the consent determination was made in regards to Part A of the Ngurrara People's native title claim, Part B of that claim was still in mediation.

    Related Entries

    Agreement
  • Kogolo v State of Western Australia (No 3) [2012] FCA 1332
  • May v State of Western Australia [2012] FCA 1333
  • Organisation
  • State of Western Australia - Respondent
  • Shire of Derby-West Kimberley - Respondent
  • Federal Court of Australia
  • National Native Title Tribunal
  • Central Desert Native Title Services Ltd
  • Kimberley Land Council (Aboriginal Corporation)
  • Yanunijarra Aboriginal Corporation RNTBC
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Mining Act 1904 (WA)
  • Mining Act 1978 (WA)
  • Petroleum Act 1936 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
  • People
  • Martu People - Respondent
  • Ngurrara People - Native Title Claimant
  • Annette Kogolo and others on behalf of the Ngurrara People - Native Title Claimant

  • References

    General Reference
    Federal Court of Australia (9 November 2007) Kogolo v State of Western Australia [2007] FCA 1703 (9 November 2007)
    National Native Title Tribunal (2007) WA- Native Title Determination Summary- Ngurrara Part A
    Deputy Premier Eric Ripper (13 November 2007) Native Title Ngurrara Claim Determination
    Resource
    National Native Title Tribunal (2008) Claimant Application Summary - Ngurrara B
    National Native Title Tribunal (1996) Claimant Application Summary - Ngurrara
    National Native Title Tribunal (30 June 2009) Registration Test Decision - Ngurrara (Part B)
    National Native Title Tribunal (9 November 2007) Native Title in the Kimberley Desert

    Glossary

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

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