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Kogolo v State of Western Australia  FCA 1703 (9 November 2007)
|Binomial Name:||Federal Court of Australia|
|Date:||9 November 2007|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Great Sandy Desert, Western Australia, Australia|
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|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.|
|Subject Matter:||Fishing | Land Use | Native Title|
|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
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.
|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.
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.
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