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Peterson v State of Western Australia [2013] FCA 518

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 16 May 2013
Sub Category:Consent Determination (Native Title Act)
Location:Western Australia , Australia
Portion One: all that land and water comprising Lot 320 as shown on Deposited Plan 40438 (formerly Reserve 11474); (b) Portion Two: (i) all that land and water comprising Lot 321 as shown on Deposited Plan 40438 (formerly Reserve 13638); and (ii) all that land and water comprising Lot 322 as shown on Deposited Plan 40438 (formerly Reserve 11541); and The Determination Area comprises all of the land and waters within the following external boundaries: - WAD 6110/1998 (Area B); - WAD 77/2006 (Area C); and - WAD 141/2010 (Area D). More specific information, including location coordinates, is available in the Determination Extract.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference: Tribunal file no.: WCD2013/002 Federal Court no.: WAD6110/1998; WAD77/2006; WAD141/2010
Subject Matter:Native Title
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2013/518.html
Summary Information:
Between:
Colin Peterson, JJ [Deceased], Teddy Biljabu, PB [Deceased], BD [Deceased], Kevin Fred, FF [Deceased], Patricia Fry, MG [Deceased], DG [Deceased], Lindsay Hardcase, Grant Judson, Ben Odapanie, NP [Deceased], Neil Pitu, Pincher Rubin, Nancy Taylor, Kenny Thomas, LW [Deceased], Tw [Deceased] & RW [Deceased] on behalf of the Martu People
(APPLICANTS); and

State of Western Australia, Annette Kogolo, Butcher Wise, LC [Deceased], CN [Deceased], Harry Yungabun, Hitler Pamba, HB, Ivan McPhee, Jimmy Nerrima, Joe Brown, Wilfred Steele, Mona Chuguna, Percy Bulagardie, PC [Deceased], PS [Deceased], Ronnie Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman and JP [Deceased] on behalf of the Ngurrara People, Newcrest Mining Ltd, Birla Nifty Pty Ltd, Straits Resources Limited, Telstra Corporation Limited (RESPONDENTS).

Judge: McKerracher J
Where made: Perth

Determination:

Native title exists in the entire determination area. It consists of exclusive and non-exclusive native title rights in relation to land.

Native title is held by

1. The Martu People, being those Aboriginal people who hold in common the body of traditional law and culture governing the Determination Area and who identify as Martu and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups:
(a) Manyjilyjarra;
(b) Kartujarra;
(c) Kiyajarra;
(d) Putijarra;
(e) Nyiyaparli;
(f) Warnman;
(g) Ngulipartu;
(h) Pitjikala;
(i) Kurajarra;
(j) Jiwaliny;
(k) Mangala; and
(l) Nangajarra; and

2. The Martu People as defined above, and the Ngurrara People. The Ngurra People are those Aboriginal people who, in accordance with their traditional laws and customs:
(a) identify themselves and their forebears as:

(i) Jiwaliny;
(ii) Mangala;
(iii) Manyjilyjarra;
(iv) Walmajarri;
(v) Wangkajungja; or
(vi) any combination of (i), (ii), (iii), (iv) and (v) above; and
(b) acknowledge the beliefs, practices and protocols associated with the jila-kalpurtu rainmaking ritual complex.

The exclusive native title rights over the determination area consist of the right of possession, occupation, use and enjoyment to the exclusion of all others, including:

(a) the right to live on the Determination Area;
(b) the right to make decisions about the use and enjoyment of the Determination Area;
(c) the right to hunt and gather and to take water for the purpose of satisfying their personal, domestic, social,
cultural, religious, spiritual, ceremonial and communal needs;
(d) the right to control access to, and activities conducted by others on, the land and waters of the
Determination Area;
(e) the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and
(f) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the Determination Area.

The native title rights and interests recognised above include the right to use the following traditionally accessed resources for the purpose of satisfying the native title holders' personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs:
(a) ochre;
(b) soils;
(c) rocks and stones; and
(d) flora and fauna.

No native title rights and interests exist in the Determination Area in relation to:
(i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) (Mining Act);
(ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and

Non-exclusive native title rights

The nature and extent of the native title rights and interests in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of the Determination is the non-exclusive right to take, use and enjoy that water for the purpose of satisfying the native title holders' personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.

The native title rights and interests are subject to and exercisable in accordance with the:
(a) traditional laws and customs of the native title holders; and
(b) laws of the State and the Commonwealth, including the common law.

Other Interests

A number of 'Other Interests' are included within the Determination. These Other Interests interact with the native title rights and interests by:

(a) the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in which case the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and

(b) the existence and exercise of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other rights and interests and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

The nature and extent of Other Interests in relation to the Determination Area are the following, as they exist as at the date of the Determination:

Reserves

The interests of persons:
(a) who have the care, control and management of; and
(b) entitled to access and use, for the purposes for which it is reserved, subject to any statutory limitations upon those rights, Reserve 5279, reserved for the purpose of 'Use and Benefit of Aboriginal Inhabitants' (originally reserved on or about 14 August 1908 pursuant to section 39 of the Land Act 1898 (WA) for the purpose of 'Camping', and having its purpose amended on 19 May 2008 to the 'Use and Benefit of Aboriginal Inhabitants').

Mining tenements

The rights and interests of the holders from time to time of a number of mining leases granted under the Mining Act. Those leases are outlined in Schedule 3 of the Determination.

In respect of the relationship between the native title rights and interests and the rights of the holders from time to time of the Mining Leases set out above, the rights conferred by the Mining Leases are exclusive rights to conduct mining operations on the areas the subject of the mining leases.

(b) The rights conferred by the Mining Leases prevail over the native title rights and interests and their exercise is wholly inconsistent with the continued exercise by the common law holders of their native title rights and interests on those areas of the Mining Leases where mining operations are conducted, while the Mining Leases or any renewal of them are in force.

(c) Subject to the Aboriginal Heritage Act 1972 (WA) the holders from time to time of the Mining Leases set out above may conduct on the areas the subject of the Mining Leases lawful mining operations without any interference, disruption or disturbance of whatever nature by the common law holders.

(d) Any rights and interests of the holders from time to time of:
(i) the Mining Leases; and
(ii) those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

General Purpose Leases

The rights and interests of the holders of the general purpose leases granted under the Mining Act relate to those Leases outlined in Schedule 3 of the Determination, and include:

(a) Any rights and interests of the holders from time to time of:
(i) the General Purpose Leases; and
(ii) those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

Miscellaneous Leases

The rights and interests of the holders of miscellaneous licences granted under the Mining Act (Miscellaneous Licences), outlined in Schedule 3 of the Determination.

These include:
(a)Any rights and interests of the holders from time to time of:
(i) the Miscellaneous Licences; and
(ii) those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

Exploration Licences

The Exploration Licences are outlined in Schedule 3 of the Determination and include:

(a) Any rights and interests of the holders from time to time of:
(i) the Exploration Licences; and
(ii) those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

Prospecting Licences

The Prospecting Licences are outlined in Schedule 3 of the Determination and include:

(a) Any rights and interests of the holders from time to time of:
(i) the Prospecting Licences; and
(ii) those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

Petroleum Interests

The rights and interests of the holders of the following petroleum interests granted under the Petroleum Pipelines Act 1969 (WA) outlined in Schedule 3 of the Determination.

Telstra Interests
The rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities within the 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:

(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c) for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in performance of their duties;
(d) to occupy the Telstra site at Latitude 21.694740 South, Longitude 122.224657 East; and
(e) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area including:

(i) a sub-lease in respect of the Telfer Exchange, located within part of G45/002, between Newmont Proprietary Limited, Newcrest Mining (WA) Limited and Telstra Corporation Limited dated 28 October 1993; and
(ii) a deed of extension of the sub-lease in respect of the Telfer Exchange, located within part of G45/002, between Newmont Proprietary Limited, Newcrest Mining (WA) Limited and Telstra Corporation Limited dated 16 September 2008.

Other Interests

The following rights and interests:
(a) rights and interests held under grants from the Crown in right of the State or the Commonwealth pursuant to statute or otherwise in the exercise of its executive power or otherwise conferred by statute;
(b) rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) rights and interests of any member of the public to use (subject to the laws of the State) the current alignment, or any minor realignment, of existing roads over which the public has a right of way according to the common law as at the date of this determination;
(d) rights and interests of any member of the public to use (subject to the laws of the State) the Canning Stock Route, including, for the avoidance of doubt, that portion which traverses Reserve 5279;
(e) the right to access the Determination Area by an employee or agent or instrumentality of:

(i) the State;

(ii) the Commonwealth;

(iii) any local Government authority,

as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;
(f) so far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(i) waterways;

(ii) beds and banks or foreshores of waterways; or

(iii) areas that were public places as at 31 December 1993; and

(g) rights and interests held pursuant to the Memorandum of Understanding between the Martu People and Newcrest Mining Ltd, undated but stamped 26 August 2003 (MOU), and noting, for the avoidance of doubt, that the terms of the MOU do not form part of the Determination for the purposes of sections 94A and 225 of the Native Title Act



Determination

The native title determination will take effect subject to the orders of the Federal Court and the operation of the Native Title Act, with native title held in trust for the native title holders set out in the Determination.

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

Determination Area

The Determination Area comprises all of the land and waters within the following external boundaries, as shown generally on the map as shaded and hatched in blue in respect of WAD 6110/1998 (Area B), yellow in respect of WAD 77/2006 (Area C), and pink in respect of WAD 141/2010 (Area D):

In relation to Area B, all those areas comprising:

(a) all those lands and waters commencing at Latitude 23.790302 South, Longitude 123.001347 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then easterly and southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WC1998/068); Then westerly along the northern boundary of that native title determination to the intersection with Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then northerly along a eastern boundary of that native title determination back to the commencement point;

(b) all that land at Latitude 21.694740 South, Longitude 122.224657 East being the Telstra site;

(c) all those lands and waters within the external extent of the following mining leases and general purpose leases granted prior to 1 January 1994 (outlined in Determination);
For the avoidance of doubt, Area B does not include all that land comprising Reserve 12297.

In relation to Area C, all those areas comprising all that land commencing at the intersection of Longitude 122.139976 East with the northern boundary of Reserve 34607 (Karlamilyi National Park) and extending southerly, westerly, again southerly, again westerly and generally northwesterly along boundaries of that reserve to Longitude 121.966223 East; thence easterly back to the commencement point.
In relation to Area D, all those areas comprising:
(a) Portion One: all that land and water comprising Lot 320 as shown on Deposited Plan 40438 (formerly Reserve 11474);

(b) Portion Two:

(i) all that land and water comprising Lot 321 as shown on Deposited Plan 40438 (formerly Reserve 13638); and
(ii) all that land and water comprising Lot 322 as shown on Deposited Plan 40438 (formerly Reserve 11541); and

(c) Portion Three:
all that land and water commencing from the northwestern corner of Reserve 5279 and extending easterly along the northern boundary of that reserve to Longitude 125.671541 East; Then southeasterly to Latitude 21.783416 South, Longitude 125.786128 East; Then northeasterly to the intersection of the northern boundary of Reserve 5279 with Longitude 125.900131 East; Then easterly, southerly, westerly and northerly along boundaries of that reserve back to the commencement point.

The following areas are land and waters excluded from the Determination Area on the basis that they are areas where native title has been completely extinguished and were therefore not included in the applications for determinations of native title:

- any public works as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act.
Outcomes:
Native title exists in the entire determination area. It consists of exclusive and non-exclusive native title rights in relation to land.

Related Entries

Organisation
  • National Native Title Tribunal
  • Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)
  • Federal Court of Australia
  • Teddy Biljabu, Kevin Fred, Patricia Fry, Lindsay Hardcase, Grant Judson, Ben Odapanie, Colin Peterson, Neil Pitu (Bidu), Pincher Rubin, Nancy Taylor and Kenny Thomas on behalf of the Martu No 1 Claim Group
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Martu People
  • Ngurrara People
  • Lynette Dunn and Nabaru (Billy) Landy on behalf of the Karnapyrri Claim Group - Signatory
  • Teddy Biljabu, Kevin Fred, Patricia Fry, Lindsay Hardcase, Grant Judson, Ben Odapanie, Colin Peterson, Neil Pitu (Bidu), Pincher Rubin, Nancy Taylor and Kenny Thomas on behalf of the Martu No 1 Claim Group

  • Documents

    Map
    Peterson v State of Western Australia [2013] FCA 518 Schedule 2 Map - ( PDF)
    Peterson v State of Western Australia [2013] FCA 518 Extract - ( PDF)
    Peterson v State of Western Australia [2013] FCA 518 Schedule 3 Other Interests - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Legislation | Native Title (Australia) | Native Title Applicants | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Native Title Applications/Claims (Australia) | Public Company | State Government

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