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Kogolo v State of Western Australia (No 3) [2012] FCA 1332

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 27 November 2012
Sub Category:Consent Determination (Native Title Act)
Location:Kimberly Region , Western Australia , Australia
Approx 225 kilometres south-east of Fitzroy Crossing.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference: Tribunal file no.: WC1996/032 Federal Court no.: WAD6077/1998
Alternative Names:
  • Ngurrara Area B
  • Part B Ngurrara Claim
  • Subject Matter:Access | Native Title | Recognition of Native Title or Traditional Ownership
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/1332.html
    Summary Information:
    Between:
    Annette Kogolo, Butcher Wise, LC, CN, Harry Yungabun, Hitler Pamba, HB, Ivan McPhee, Jimmy Nerrima, Joe Brown, Wilfred Steele, Mona Chuguna, Percy Bulagardie, PC, PS, Ronnie Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman and JP on behalf of the Ngurrara People(APPLICANTS) and

    The State of Western Australia, Shire of Derby West Kimberley and Martu People (RESPONDENTS)

    Judge: Gilmour J

    Where made: Perth

    Determination:

    Native title is held communally by the Ngurrara People:

    Native title exists over the determination area. It consists of exclusive native title rights.

    The native title rights and interests that exist over land in the determination area include:
    - the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.

    In relation to flowing and subterranean waters in the exclusive native title area, the following non-exclusive rights apply:
    - the right to hunt, fish and gather from the water; and
    - the right to take and use the water for personal, domestic and non-commercial communal purposes.

    Non-native title rights and interests that exist within the determination area can be summarised as

    - Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - Rights and interests, including licences and permits, granted by the Crown pursuant to statute or in the exercise of executive power;
    - Rights or interests held under laws of the State or the Commonwealth including under the Rights in Water and Irrigation Act 1914 (WA);
    - The right to access land by an employee or agent or instrumentality of the State, the Commonwealth, or local Government authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
    - Rights of the public to access any roads within Determination Area where access to such roads is in accordance with the common law;
    - Rights of the holders of petroleum interests under the Petroleum Act 1967 (WA) to use the roads and tracks in Determination Area in order to have access to such petroleum interests. This does not allow for any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair;
    - Any existing public access rights to and enjoyment of waterways or the beds and banks or foreshores of waterways or stock routes.


    Provisions Relevant to the Native Title Rights

    The native title rights and interests include the right to take and use ochre as ochre is not a mineral pursuant to the Mining Act 1904 (WA), but does not include the right to other minerals, petroleum and geothermal energy resources as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA).

    The Yanunijarra Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).

    Detailed Information:
    Background
    The Ngurrara application was first lodged with the National Native Title Tribunal on 22 March 1996.

    Part A of the Ngurrara Area was determined in 2007 with recognition of native title rights and interests covering an area comprised of about 77,810 square kilometers 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. The majority of the land was unallocated crown land.

    Part B of the Ngurrara claim is the current determination and 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.

    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 pursuant to s 87 of the Native Title Act 1993 (Cth).

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

    Related Entries

    Agreement
  • Kogolo v State of Western Australia [2007] FCA 1703 (9 November 2007)
  • May v State of Western Australia [2012] FCA 1333
  • Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6)
  • Organisation
  • State of Western Australia - Respondent
  • Shire of Derby-West Kimberley - Respondent
  • Legislation
  • Petroleum Act 1936 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Mining Act 1978 (WA)
  • Mining Act 1904 (WA)
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Annette Kogolo and others on behalf of the Ngurrara People - Native Title Claimant
  • Martu People - Respondent
  • Ngurrara People - Native Title Claimant

  • References

    General Reference
    National Native Title Tribunal (2007) WA- Native Title Determination Summary- Ngurrara Part A
    National Native Title Tribunal (2012 ) Native title determination summary - Ngurrara Area B
    Agreement
    Federal Court of Australia (9 November 2007) Native Title Determination: Ngurrara
    Newspaper Article
    Darren Cove (21 November 2007) Ngurrara Claim a Success
    Sydney Morning Herald (9 November 2007) Ngurrara people win native title claim
    Resource
    Office of Native Title (December 2007) Ngurrara Native Title Determination
    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 (2008) Claimant Application Summary - Ngurrara B

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Determination (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Representative Body (NTRB) (Australia) | Respondent

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