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WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 29 July 2013
Sub Category:Consent Determination (Native Title Act)
Location:Wiluna, Western Australia, Australia
Located in the vicinity of Wiluna in the state of Western Australia. The Determination area consists of three parcels including: - Wiluna; - Tarlpa; and - Wiluna #3. For specific coordinates and location details see the attached extract.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference: Tribunal file no.: WCD2013/004 Federal Court no.: WAD6164/1998; WAD248/2007; and WAD181/2012
Alternative Names:
  • Wiluna
  • Wiluna #3
  • Tarlpa
  • Subject Matter:Native Title
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2013/755.html
    Summary Information:
    WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755.

    In this Consent Determination the Judge gave a determination for the three separate applications:

    WAD 6164 of 1998

    Between: WF (deceased), Barry Abbott, Alan Ashwin, Judy Ashwin, KF (deceased), MF (deceased), FJ (deceased), JM (deceased), BP (deceased), Kitty Richards, Dusty Stevens, Norman Thompson, Joyce Tullock, LT (deceased) and MW (deceased) on behalf of the Wiluna People. (APPLICANTS)

    and

    The State of Western Australia, BHP Billiton Nickel West Pty Ltd, Newmont Yandal Operations Pty Ltd, Jaw Ford (Paroo Station), Kimley Pty Ltd (Carnegie Station), Wayne William Linke, William Roy Linke, Dawn Marie Martin, Niminga Pty Ltd (Niminga Station), PJ & SA Quadrio (Granite Peak Station), Kenneth Arthur Shaw, LR Ward (Glen Ayle Station), RW Ward (Millrose Station), Wiluna Stations Pty Ltd, Wongawol Pty Ltd (Wongawol Station), Telstra Corporation Limited and the Commonwealth of Australia (RESPONDENTS)

    WAD 248 of 2007

    Between: LT (deceased), CB (deceased), FJ (deceased) and Elizabeth Wongyabong (APPLICANTS);

    and

    The State of Western Australia, Central Desert Native Title Services Ltd, BHP Billiton Nickel West Pty Ltd and MPI Nickel Pty Ltd (RESPONDENTS)

    WAD 181 of 2012

    Between: Victor Ashwin and Kelman James Patch (APPLICANTS)

    and

    The State of Western Australia (RESPONDENT)

    Judge: McKerracher J

    Where made: Puwanu, Western Australia

    Determination

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

    Native title exists in relation to the whole of the Determination Area identified in Part 1 of Schedule 1, subject to the exclusions in Part 3 of Schedule 1 (Determination Area).

    Native title does not exist in the areas described in Part 2 of Schedule 1.

    Native Title is held by the Wiluna people

    The native title holders:

    (a) have rights in part or all of the Determination Area through descent (whether from a parent or grandparent from the area or who died and is buried in the area), conception and/or birth within the area, long-term residence within the area, high ritual knowledge within the area or responsibility for sites within the area; and
    (b) who are recognised under the traditional laws and customs by the other native title holders as having rights in the Determination Area.

    At the date of the Determination, this includes the following persons who are recognised under the relevant traditional laws and customs by the other native title holders as having rights in the Determination Area:

    (a) the descendants of the union of the following people:

    (i) Milpuntu/Jack Abbott and Puku/Amy Abbott;
    (ii) Warilki Anderson and Tjungtawa/Skinny Fannie/Bunnie Stevens;
    (iii) Maitungkata/Paddy Anderson and Kiliya/Amy Anderson;
    (iv) Yingkali Manara/Mickey Ingle and Kurutjuli/Miriam;
    (v) Kunamalaya/Jacky Jackman and Wilunya/Wilana Brown/Jackman;
    (vi) Peter Gogo and Lady Gogo;
    (vii) Ngalama/Old Paul Morgan and Wangu;
    (viii) Lenny Morrison and Fannie Jones/Stevens;
    (ix) Anthony Jones and May Jones;
    (x) Charlie Riley and Biddy Riley;
    (xi) Muddy Patch and Marlala Nanji;
    (xii) Kurril/Scotty/Ted/Packhorse Rennie Tullock and Daisy Garland;
    (xiii) Piparntjukurr and Kiri/Keri Muru;
    (xiv) Wuli/Jimmy Wongawol and Lily Munda;
    (xv) Nyarraur/Cutline/Ben Brown and Amy Jackman/Brown;
    (xvi) Nanyi-Nanyi/Mr P/Billy Patch and Rosalie Anderson/Patterson; and
    (xvii) Wakukutjara and Yayangarta.

    (b) the descendants of the following people:

    (i) Cyril Bingham;
    (ii) Munga/Margaret Long;
    (iii) Tauwi/Miriam Stewart;
    (iv) Mimpu/Willy Williams;
    (v) Ningara Martin;
    (vi) Mirta-Mirta/Andy Campbell;
    (vii) Kutulan/Hitler Richards;
    (viii) Lorna Redman/Stewart;
    (ix) Nyunyi/Maudie Jackman;
    (x) Ngalyakarnpal/Barbara Anderson;
    (xi) Rosy Grant;
    (xii) Alfie Ashwin;
    (xiii) Gladys Bingham;
    (xiv) Adam Bingham;
    (xv) Christine Bingham;
    (xvi) James Harris;
    (xvii) Winya/Minnie;
    (xviii) Yungkutjuru/Kitty Hill;
    (xix) Tulkiwa/Jeanie Elliott;
    (xx) Molly Long;
    (xxi) Mitjipung/Sandy/Santa Clause;
    (xxii) Kanturangu/Frank Narrier;
    (xxiii) Yarltat/Joe Finch;
    (xxiv) Pangka Wongawol/Riley;
    (xxv) Saxon/Jackson Stevens;
    (xxvi) Yupun;
    (xxvii) Tjiriltjukul;
    (xxviii) Yutunga/Udunga Kianga;
    (xxix) Yinyiyapa/Ruby Jackson/Parker;
    (xxx) Wungkajtu/George Wongajoe;
    (xxxi) Molly Anderson;
    (xxxii) Eddieman/Edmund/Eddie Redman; and
    (xxxiii) Minnie Wongawol.

    (c) the following people and the descendants of their unions with the listed deceased partner:

    (i) Jimmy Patch (deceased) and Maxine Warren;
    (ii) Yalyalyi/Jack Stevens (deceased) andTilly Gogo/Stevens;
    (iii) Tjupi-Tjupi/Peter Stewart (deceased) and Tjilpi/Greta Long; and
    (iv) Yatjuwunga/Peter (deceased) and Katjipil/Daisy Kaddabil.

    (d) the following people and their descendants:

    (i) Firestick/Barry Abbott;
    (ii) Nyapala Morgan;
    (iii) Wendy Redman/Abbott;
    (iv) Nyulkul-Nyulkul/Dusty Stevens;
    (v) Creamy Allison;
    (vi) Monty Allison;
    (vii) Elizabeth Wongyabong; and
    (viii) Shirley Wongyabong.
    (e) the following people:
    (i) Matuwa/Norman Thompson.

    Matters determined by Consent

    1. Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 50 of 2010 be discontinued and no determination is made in respect of that part.
    2. Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 181 of 2012 be discontinued.
    3. In relation to the Determination Area, there be a determination of native title in part of the area covered by
    WAD 6164 of 1998 and a determination of native title in the whole of the area covered by WAD 248 of 2007 and WAD 181 of 2012 in terms of the Determination at Attachment 'A' to these orders. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57 (2) of the Native Title Act 199 (Cth) as the case may be.
    4. Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:

    (a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
    (b) including within the nomination the written consent of the body corporate.

    5. If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests described in order 3 in trust for the common law holders of the native title rights and interests.
    6. In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.

    Nature and Extent of Native Title rights and interests

    The exclusive native title rights over part of the determination area consist of

    The nature and extent of the native title rights and interests in relation to each part of the Determination area where there has not been extinguishment of native title or where extinguishment has not been disregarded, is the right of possession, occupation, use and enjoyment of that part as against the whole world.

    The non-exclusive native title rights over part of the determination area consist of

    The nature and extent of the native title rights and interests in parts of the Determination Area where the native title right of possession, occupation, use and enjoyment is not available at law including by reason of partial extinguishment, are:
    (a) the right to access, to remain in and to use that part;
    (b) the right to take and use resources in that part; and
    (c) the right to have access to, maintain and protect places, and areas and objects of importance on or in that part.

    The native title rights and interests do not confer:

    (a) possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others; nor
    (b) a right to control access to, or use of, those parts of the Determination Area.

    The native title rights and interests are exercisable in accordance with and subject to the:

    (a) traditional laws and customs of the native title holders; and
    (b) laws of the State and the Commonwealth, including the common law.

    Nature and extent of native title rights and interests in relation to:

    (a) water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) is the non-exclusive right to take, use and enjoy that water; and
    (b) the native title right to take resources in relation to the Determination Area is a right in native title holders to take resources for the purpose of satisfying their personal, domestic or non-commercial communal needs (including social, cultural, religious, spiritual and ceremonial needs and including by way of sharing and exchange).

    Native title rights and interests do not exist in relation to:
    (a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
    (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Resources Energy Act 1967 (WA); or
    (c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

    Other Interests

    The nature and extent of other interests in relation to the Determination Area are the following:

    - reserves;
    - leases;
    - pastoral leases;
    - easements;
    - mining tenements;
    - exploration licences;
    - general purpose lease;
    - prospecting lease;
    - retention licence;
    - miscellaneous licences;
    - petroleum interests;
    - rights and interest of Telstra Corporation Ltd; and
    - a number of other interests including right under Crown grants and rights under the Rights in Water and Irrigation Act1914(WA). For further details and specific licence and lease details see the attached.

    Relationship between native title rights and other interests

    The Determination does not affect the validity of other interests.

    To the extent of any inconsistency between the other interests and the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests.

    Other interests co-exist with the native title rights and interests and the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

    The native title holders and the holders of the pastoral leases: 3114/654 (Granite Peak), 3114/960 (Millrose), 3114/1049 (Cunyu), 3114/1066 (Prenti Downs), 3114/1067 (Yelma), 3114/1068 (Wongawol), 3114/1069 (Niminga), 3114/1070 (Carnegie) and 3114/1131 (Paroo) (being the current holders of an other interest for the purposes of the Determination) have:
    (a) agreed in writing to the principles which will apply to the exercise of their co-existing rights, subject to any variation as may be agreed from time to time;
    (b) reproduced those principles such as they are agreed as at the date of the Determination; and
    (c) agreed that any rights conferred by those principles do not form part of this determination made for the purposes of sections 94A and 225 of the Native Title Act.

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

    Pastoral Co-existence Principles

    The native title rights and interests recognised by the Determination are held on trust for the native title holders by the Wiluna PBC.

    Within the Determination area, a number of pastoral leases exist. Individual pastoralists are required to exercise rights in accordance with the terms of their respective pastoral leases. The rights of the native title holders co-exist with the rights of individual pastoralists.

    The Determination outlines a number of principles which binds the native title holders and pastoralists, who are required to exercise their co-existing rights and interests harmoniously.

    Discussion and Notice

    The Pastoralist and the Native Title Holders may discuss matters relating to the exercise of their co-existing rights
    in a cooperative and consultative manner and will use their respective best endeavours to notify each other of
    certain upcoming matters.

    The Pastoralist and the Wiluna PBC and/or Native Title Holders may discuss from time to time any matter including (but not limited to):
    (a) safety issues;
    (b) the efficient undertaking of Pastoral Activity;
    (c) relevant business of the Pastoralist;
    (d) places to be avoided temporarily due to Pastoral Activities such as mustering or trapping;
    (e) heritage, cultural and law business issues; and
    (f) issues related to compliance with any Law, including, but not limited to discussions about:

    (i) camping on the Pastoral Lease;
    (ii) use of Pastoral Lease roads and tracks, including closure;
    (iii) the lighting and extinguishment of fires;
    (iv) consumption of alcohol;
    (v) control of animals;
    (vi) the use of fire arms;
    (vii) soil or other environmental conservation matters (including but not limited to feral animal control); and
    (viii) heritage issues including the interference with sites or areas of cultural significance.

    The Pastoralist and Wiluna PBC or Native Title Holders will use best endeavours to:
    (a) in the case of the Wiluna PBC / Native Title Holders, provide 48 hours notice to the Pastoralist of the intention to access the Pastoral Lease for the purpose of exercising native title rights and interests; and
    (b) in the case of the Pastoralist, provide reasonable notice of significant Inconsistent Events that are proposed on the Pastoral Lease.

    The Determination goes on to recognise the following factors in relation to principles of pastoralism:

    - waste and rubbish;
    - station facilities;
    - visits to homestead;
    - camping and access;
    - hunting;
    - dogs and dog baiting;
    - station tracks and roads;
    - gates;
    - fires;
    - privacy; and
    - common law holders' rituals and ceremonies.

    For detailed descriptions of these factors, see the attached extract.


    Liberty to Apply

    The parties to the Determination are granted liberty to apply for the following purposes:
    (a) to establish the precise location of the boundaries of land on which the improvements have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements;
    (b) to establish whether any of the improvements have
    been constructed unlawfully in breach of the terms of the relevant pastoral lease; and
    (c) to establish the precise location of the public works and adjacent land and waters identified in relation to
    any part or parts of the Determination Area.

    Provisions Relevant to the Native Title Rights

    A Proscribed Body Corporate in accordance with the Native Title Act 1993 (Cth) will be set up wtihin 12 months of the determination. If a prescribed body corporate is not set up within 12 months the matter will go before Court again.

    sections 47, 47A and 47B of the Native Title Act respectively apply to the areas described in Schedule 8.

    Definitions

    'Land' and 'waters' have the same meanings as in the Native Title Act and 'resources' means flora, fauna, water and other natural resources and 'State' means the State of Western Australia.

    Related Entries

    Organisation
  • Shire of Wiluna
  • Tarlka Matuwa Piarku Aboriginal Corporation RNTBC
  • Federal Court of Australia
  • Legislation
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Wiluna Indigenous Community

  • Documents

    Map
    WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Map of Determination Area - ( PDF)
    WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Extract - ( PDF)
    WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Determination Area Part 3 Excluded Area - ( PDF)
    WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Other Interests - ( PDF)
    WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Where native title is not in exclusive possession - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Extinguishment (Australia) | Claimant Application (Native Title Act 1993 (Cth)) (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Registers | Native Title Applicants | Native Title Claimants (registered) (Australia) | Native Title Determination (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Applications/Claims (Australia) | Party to an Indigenous Land Use Agreement (ILUA) (Australia)

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