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Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 14 March 2014
Sub Category:Consent Determination (Native Title Act)
Location:Esperance , Western Australia, Australia
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Tribunal file no. WCD2014/002 Federal Court file no(s) WAD6097/1998
Subject Matter:Native Title
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2014/197.html
Summary Information:
Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197

Between:
Elaine Bullen, Diane Clinch, Jarman Jamieson, Graham Tucker, Veronica Williams-Bennell and Jenny Woods on behalf of the Esperance Nyungar People (APPLICANTS)
and
State of Western Australia, Shire of Esperance, Shire of Ravensthorpe, Ravensthorpe Nickel Operations Pty Ltd and the Shell Company of Australia Limited (RESPONDENTS)

Judge: McKerracher J
Where made: Esperance, Western Australia

Determination:

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

Native title is held by the Esperance Nyungar People.

The non-exclusive native title rights over part of the determination area consist of:
- the right to access the land and waters;
- the right to camp and light fires for cooking, heating and lighting purposes;
- the right to take, use and exchange flora, fauna, fish and shellfish and other traditional resources from the land and waters;
- the right to take and use water;
- the right to participate in cultural and religious activities; and
- the right to care for, maintain and protect from harm particular sights and areas of traditional cultural significance to the Native Title Holders.

Non-native title rights and interests that exist in the determination area include:
- the rights and interests in relation to reserves, roads, mining tenements, and petroleum;
- the rights and interests of Telstra Corporation Ltd as the operator of telecommunications;
- the rights and interests of others granted by the Crown pursuant to statute or otherwise in the exercise of executive power;
- the rights and interests of the public as conferred by common law; and
- the right to access the Determination Area by an employee, agent or instrumentality of the State, Commonwealth or local government.

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

Esperance Tjaltjraak Native Title Aboriginal Corporation, 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 may be held on trust for the native title holders.
Detailed Information:
Background

The Esperance Nyungar peoples' native title claim over a 29,000 square kilometre area in the souther Goldfields was formally acknowledged after a flight to have the native title recognised had lasted almost two decades. A special court hearing was hear at the Esperance Civic Centre to make a determination that confirmed that native title exists in the area claimed by the Esperance Nyungar people. Around 150 people were present to witness the ceremony, amongst them were family members and legal representatives.

"We have at last been acknowledged and we can now continue to learn and teach younger people and other people who are interested in our culture and tradition down this way." (Brewin 2014)

"It's an excellent outcome, not just for the Esperance Nyungar people but also the community as a whole, today is a day of recognition." (Brewin 2014)

Details of the 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 Esperance Nyungar People in relation to part of the land and waters covered by the Esperance Nyungar 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

Organisation
  • National Native Title Tribunal
  • State of Western Australia
  • Shire of Ravensthorpe
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • The Esperance Nyungar People

  • References

    General Reference
    Rebecca Brewin (17 March, 2014) Esperance Nyungar people have native title recognised after 18 year wait

    Documents

    Document
    Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197 - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Federal Government | Legislation | Local Government | National Park | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Registers | Respondent | State Government

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