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Hunter & Ors v State of Western Australia [2012] FCA 690

Category: Agreement
Binomial Name: Federal Court of Australia
Sub Category:Consent Determination (Native Title Act)
Location:Anna Plains , Western Australia , Australia
The Determination Area covers an area of around 2,000 square kilometres situated on the coast about 190 kilometres south-west of Broome near Anna Plains. More specifically the Determination Area covers the land and water commencing at the southernmost southwestern corner of the Native Title Determination of the Karajarri People and extending northwesterly to low tide and then extending northeasterly along low tide to the boundary of the Native Title Determination Karajarri of the People before extending easterly along southern boundaries of that determination before southwesterly along boundaries of the Native Title Determination of the Karajarri People back to the commencement point.
Legal Status: Registered on the National Native Title Register.
Legal Reference: National Native Title Tribunal No:WC98/65 Federal Court No:WAD6281/1998
Alternative Names:
  • Nyangumarta-Karajarri Overlap Proceeding (Yawinya)
  • Subject Matter:Access | Fishing | Intra-Indigenous Agreement | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/690.html
    Summary Information:
    Between:

    Darcy Hunter, Winnie Coppin, WD (deceased), Alma Gray and Ada Stewart on behalf of the Nyangumarta People (APPLICANTS) AND

    State of Western Australia, Telstra Corporation Ltd, The Commonwealth of Australia, Mandora Pty Ltd, Western Australian Fishing Industry Council (Inc), and Anna Plains Cattle Co P/L (RESPONDENTS)

    and

    Between:

    SP (deceased), Celia Bennet, Harry Watson, Joseph Munro, Joseph Edgar, John Watson, Gordon Marshall, Donald Grey, Regina Grey, Wittidong Mulardy, John Hopiga, Lenny Hopiga, Mervyn Mulardy Jnr, Anthony Watson Others on behalf of the Karajarri People (APPLICANT)

    AND:

    State of Western Australia, Telstra Corporation Ltd, The Commonwealth of Australia, Mandora Pty Ltd, Western Australian Fishing Industry Council Anna Plains Cattle Co P/L, Darcy Hunter, Winnie Coppin, WD (deceased) Alma Gray and Ada Stewart (RESPONDENTS)


    Judge: North J
    Where made: Anna Plains

    Determination: Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights.

    Native title is held jointly by the Nyangumarta People and by the Karajarri People.

    Nyangumarta People are persons descended from apical ancestors and are Aboriginal persons and who self-identify as Nyangumarta and are generally accepted by other members of the Nyangumarta community as Nyangumarta under traditional law and custom.

    Karajarri People are persons descended from apical ancestors and are Aboriginal persons and who self-identify as Karajarri and are generally accepted by other members of the Karajarri community as Karajarri under traditional law and custom.

    Exclusive native title rights consist of the possession, occupation, use and enjoyment of the area to the exclusion of all others.

    Non-exclusive native title rights and interests that exist over land in the determination area include:

    - the right of access;
    - the right to hunt and to fish;
    - the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;
    - the right to take, share and exchange natural resources;
    - the right to access and take water for personal, domestic or non-commercial communal purposes;
    - the right to conduct ceremonial activities on the area and to hold meetings;
    - the right to be buried on, and bury other Native Title holders, on the area;
    - the right to look after significant cultural sites and places;
    - the right to be accompanied onto the Determination Area by people who, though not native title holders are spouses, parents, children of native title holders, or people required by traditional law and customs for the performance of ceremonies or cultural activities on any part of the Determination Area or people who have rights in relation to any part of the Determination Area;

    Non-exclusive rights in intertidal areas: In relation intertidal areas within the determination area, the native title rights and interests are the non-exclusive rights to access, remain within, and move freely through the Determination Area, the right to fish and hunt fish for personal, domestic and non-commercial communal needs, take flora and fauna, take the traditional resources of the Determination Area including shells for personal, domestic or non-commercial communal needs, take, share and exchange the natural resources including, soil, sand, clay, gravel, ochre, timber and stone for personal, domestic or non-commercial communal needs, engage in cultural activities in the area, including the transmission of cultural heritage knowledge, conduct ceremonies, hold meetings, visit, maintain, and protect from physical harm, places, sites and areas of significance and the right to take live adult Pinctada maxima pearl oyster for the purpose of sustenance and use of its shell for ceremonial activities including exchange of goods to the extent that such exchange is effected in accordance with a traditional ceremony and the the right to take shell of dead Pinctada maxima for the purpose of using its shell for ceremonial activities including the ceremonial exchange of goods.

    Non-native title rights and interests that exist within the determination area can be summarised as
    - Pastoral Lease 3114/485, Mandora
    - Pastoral Lease 3114/1154, Anna Plains
    - The interests of persons who have the care, control and management, leases over or have an entitlement to access and use the following reserves: Reserve 1528 and 1529 - Watering Place and Reserve 9697 - Kimberley De Grey Stock Route;
    - Existing petroleum interests of Exploration Permit 448 and Exploration Permit 465 under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - Rights and interests granted by the Crown including interests of the holders of statutory fishing and pearling licences and permits granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth).
    - Rights or interests held under State or Commonwealth law including rights and interests under the Rights in Water and Irrigation Act 1914 (WA);
    - Rights and interests of members of the public arising under the common law, including but not limited to the public right to fish and the public right to navigate;
    - The right to access land by an employee or agent of the local Government authority, State or Commonwealth in the performance of his or her statutory or common law duties;
    - Rights of any person to access and enjoy any roads within the Determination Area existing as at the date of this determination where members of the public have access to such roads and the Kimberley De Grey Stock Route.
    - Rights of the holders of petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969
    (WA) and mining tenements under the Mining Act 1978 (WA) to use the roads and tracks in the Determination Area existing at the date of this determination in order to have access to such petroleum, pipeline and mineral interests;
    - Any existing public access to and enjoyment of waterways, the beds and banks or foreshores of waterways, coastal waters, beaches, stock routes, areas that were public places at the end of 31 December 1993;
    - Any other legal or equitable estate or interest in the land or waters or any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with the land or waters or
    an estate or interest in the land or waters or restriction on the use of the land or waters, whether or not annexed to other land or waters;
    - The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and holder of a carrier licence under the Telecommunications Act 1997
    (Cth) or created pursuant to the
    Post and Telegraph Act 1901
    (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including the right to establish a telecommunications facility on, and remain in occupation of UCL 18 and the right to install cabling, customer terminal facilities and ancillary facilities and for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area.
    - The rights and interests of the Executive Director of the Department of Environment and Conservation pursuant to the Deed of Agreement made between the Executive Director of the Department of Conservation and Land Management (as it then was) and Anna Plains Cattle Co. Pty Ltd under s 16A of the Conservation and Land Management Act 1984 (WA).

    Provisions Relevant to the Native Title Rights

    Native title does not exist over
    - minerals, petroleum or prescribed substances as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or the Atomic Energy Act 1953 (Cth).

    Nyangumarta Karajarri Aboriginal Corporation (the Corporation) is to hold the rights and interests comprising the native title in trust for the common law holders. Although the Nyangumarta people and the Karajarri people have existing prescribed bodies corporate which hold native title rights and interests in respect of their own country, they have registered a new prescribed body corporate to hold the rights and interests in the shared country.
    Detailed Information:
    Background

    Immediately to the north and west of the land in question in the present applications is land in which the Court determined (Nangkiriny v State of Western Australia [2002] FCA 660 (Nangkiriny) that the Karajarri have native title rights and interests in the determination area known as the Karajarri land. Immediately to the south of the land in question in the present applications is land in which the Federal Court determined in the case of Hunter v State of Western Australia [2009] FCA 654 that the Nyangumarta people have native title rights and interest (the Nyangumarta land).

    The current Determination Area is country shared by the Nyangumarta people and the Karajarri people (the shared country).

    The determination concerns a native title application that was lodged in 1998 by the Nyangumarta people over land including the shared area and extending beyond. On 3 December 2008, the Karajarri people filed an application for native title rights and interests covering the shared country only. On 11 June 2009, the Court determined that the Nyangumarta people held native title rights and interests in the determination area not including the shared area, and adjourned consideration of the application concerning the shared area.

    Pursuant to s 67(1) of the Native Title Act 1993 (Cth) both applications have been dealt with in the same proceeding, the Nyangumarta-Karajarri (Yawinya) Overlap Proceeding.

    The parties to the applications have now reached agreement as to the outcome of the applications
    non-exclusive native title rights and interests over an area located in the south western Kimberley region covering approximately 2000 square kilometres.

    This consent determination finalises applications made by Nyangumarta and Karajarri Peoples.

    The National Native Title Tribunal also mediated two Indigenous land use agreements (ILUAs) between the recognised native title holders and the two pastoral interests that lie within the determination area. Both ILUAs were signed following the consent determination.

    Details of Judgement
    The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed in the Federal Court.

    The court was satisfied that a determination of native title was within the power of the court.

    Related Entries

    Agreement
  • Hunter v State of Western Australia [2009] FCA 654 (11 June 2009)
  • Nyangumarta Warrarn Aboriginal Corporation & Anna Plains Pastoral Lease Indigenous Land Use Agreement (ILUA)
  • Nangkiriny v State of Western Australia [2002] FCA 660 (12 February 2002)
  • Nyangumarta Karajarri and Mandora Station Indigenous Land Use Agreement (ILUA)
  • Nyangumarta PBC KSCS Indigenous Land Use Agreement (ILUA)
  • Organisation
  • National Native Title Tribunal
  • State of Western Australia - Respondent
  • Telstra Corporation Limited - Respondent
  • Karajarri Traditional Lands Association (Aboriginal Corporation)
  • Anna Plains Cattle Co. - Respondent
  • Mandora Pty Ltd - Respondent
  • Western Australian Fishing Industry Council (Inc) - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Fish Resources Management Act 1994 (WA)
  • Pearling Act 1990 (WA)
  • Fisheries Management Act 1991 (Cth)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Petroleum Pipelines Act 1969 (WA)
  • Mining Act 1978 (WA)
  • Telecommunications Act 1997 (Cth)
  • Post and Telegraph Act 1901(Cth)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Conservation and Land Management Act 1984 (WA)
  • Atomic Energy (Control of Materials) Act 1946 (Cth)
  • Atomic Energy Act 1953 (Cth)
  • People
  • Darcy Hunter and others on behalf of the Nyangumarta People - Native Title Claimant
  • Nyangumarta People - Native Title Claimant
  • Darcy Hunter and others on behalf of the Nyangumarta people - Native Title Claimant
  • Karajarri People - Native Title Claimant

  • References

    General Reference
    National Native Title Tribunal (2012) WA - Native title determination summary - Nyangumarta-Karajarri Overlap Proceeding (Yawinya)
    National Native Title Tribunal (NNTT) (20 August 2012) Extract from Register of Indigenous Land Use Agreements - Nyangumarta Karajarri and Mandora Station ILUA
    Media Release
    National Native Title Tribunal (2012) Nyangumarta Karajarri native title claim resolved over south western Kimberley

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Claimant Application (Native Title Act 1993 (Cth)) (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Claimants (registered) (Australia) | Native Title Determination (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Registers | Prescribed Body Corporate (PBC) (Native Title Act) (Australia) | Respondent

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