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Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 20 November 2012
Sub Category:Consent Determination (Native Title Act)
Location:Tom Price Township , Western Australia, Australia
The determination area largely covers the area of Tom Price township.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title determinations
Legal Reference: Tribunal file no.: WC1997/089 Federal Court no.: WAD6208/1998
Alternative Names:
  • Eastern Guruma People (No 2)
  • Subject Matter:Mining and Minerals | Native Title | Native Title - Extinguishment | Recognition of Native Title or Traditional Ownership
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/1267.html
    Summary Information:
    Between:
    Nelson Hughes, Peter Stevens and Eva Connorson behalf of the Eastern Guruma People
    (APPLICANTS) and

    The State of Western Australia, Shire of Ashburton, Yamatji Marlpa Aboriginal Corporation, Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Resources Ltd and Robe River Mining Co Pty Ltd
    (RESPONDENTS)

    Judge: Bennett J

    Where made: Kings Lake, Tom Price

    Determination:

    Native title exists in the Determination Area B of the Eastern Guruma native title claim. It consists of non-exclusive native title rights

    Native title is held by the Eastern Guruma people.

    The non-exclusive native title rights over part of the determination area consist of
    - the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters;
    - the right to hunt, fish, gather or take and to use, share and exchange the resources of the land and waters;
    - the right to take and use water from the land;
    - the right to engage in ritual and ceremony on and in relation to the land and waters; and
    - the right to care for, maintain and protect from physical harm, particular objects, sites and areas of significance to the Eastern Guruma People.

    Other rights and interests that exist in the determination area include:

    - Rights of the parties to the Hamersley Iron Pty Ltd - Eastern Guruma Indigenous Land Use Agreement (Area Agreement);
    - Reserve 49455 and Reserve 49456 for the purpose of drainage and pedestrian access respectively, the rights and interests of persons who have the care, control and management of the reserves and the rights and interests of persons entitled to access and use those reserves;
    - General lease GE J184853 and the rights and interests of the holder of that lease;
    - the interests of the Crown and the public in certain public roads;
    - the rights and interests of the holders of the following mining tenements granted under the Mining Act 1978 (WA): Exploration Licences
    Tenements E 47/1136 to Talisman Mining Ltd, E 47/1789 to Hamersley Iron Pty Ltd, E 47/2062 to FMG Pilbara Pty Ltd, E 47/2098 to Brockman Exploraton Pty Ltd, Miscellaneous Licences
    Tenements L 47/100 to Hamersley Iron-Yandi Pty Ltd, and L 47/137, L 47/206, L 47/282, L 47/283 to Hamersley Iron Pty Ltd;
    - the rights and interests of the parties to the Hamersley Iron Pty Ltd - Eastern Guruma Indigenous Land Use Agreement (Area Agreement) (Tribunal No.WI01/1);
    - the rights of the holders of mining tenements, to use such portions of existing roads and tracks in Determination Area B as necessary to have access to the area the subject of the mining tenement;
    - The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within Determination Area B, 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 rights to inspect land, to install and operate telecommunications facilities and to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities;
    - the rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or of the State pursuant to statute or otherwise in the exercise of its executive power;
    - the rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in the Water and Irrigation Act 1914 (WA);
    - the rights and interests of members of the public arising under the common law, including any public right of access;
    - the right to access the Determination Area B by an employee, agent or instrumentality of the State, Commonwealth or local government body in the performance of their duty;
    - any existing public access to and enjoyment of, waterways, beds and banks or foreshores of waterways, stock routes and areas that were public places at the end of 31 December 1993 and any other valid legal or equitable estate or interest in the land or waters or other right, 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;

    In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

    Provisions Relevant to the Native Title Rights

    Wintawari Guruma Aboriginal Corporation RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held in trust for the native title holders.

    Detailed Information:
    Background

    The Eastern Guruma application was lodged with the National Native Title Tribunal on 21 October 1997. In 2007 the Federal Court orders by consent were made that native title exists over a portion of the area covered by the application, determined in the case of Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365. This case held that the Eastern Guruma people had native title rights to land of approximately 8,700 square kilometres in the Eastern Pilbara region of Western Australia. It was the first native title claim settled by consent in the Pilbara region.

    The undetermined portion of the Eastern Guruma application, described by the parties as 'the Part B Area', has remained in mediation before the National Native Title Tribunal. The Part B Area covers the town of Tom Price and is comprised of many large tracts of unallocated Crown land subject to prior extinguishing acts.

    Extinguishment of native title over the full extent of Tom Price has occurred however under s 47B of the Native Title Act 1993 extinguishment over some of the crown land must be disregarded. Native title was not found to exist over public works, residential freehold, roads, some reserves and leases, and certain areas of vacant Crown land.

    The Eastern Guruma People will not be able to veto future development in the area, but their native title rights must be taken into account.

    Details of Judgement
    Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Eastern Guruma People in relation to the Tom Price township covered by the Eastern Guruma Application. 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
  • Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365
  • Hamersley Iron Pty Ltd - Eastern Guruma Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Wintawari Guruma Aboriginal Corporation
  • State of Western Australia - Respondent
  • Yamatji Marlpa Aboriginal Corporation - Respondent
  • Shire of Ashburton - Respondent
  • Robe River Mining Company Pty Ltd - Respondent
  • Hamersley Iron Pty Ltd - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Post and Telegraph Act 1901(Cth)
  • Mining Act 1978 (WA)
  • People
  • Guruma People - Native Title Claimant

  • References

    Media Release
    Michael Mischin MLC (20 November 2012) Tom Price native title claim resolved

    Glossary

    Aboriginal Corporation (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Legislation | Local Government | Lease | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Representative Body (NTRB) (Australia) | Native Title Applicants | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Determination (Australia) | Respondent | Native Title Registers

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