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Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293

Category: Agreement
Date: 2 December 2014
Sub Category:Consent Determination (Native Title Act)
Location:Western Desert region, between the Nullarbor Plain and the Great Victorian Desert surrounding Jubilee Lake., Western Australia, Australia
The determination area is outlined in Schedule 1 of the judgment. It is situated in the Western Desert region in Western Australia between the Nullarbor Plain and the Great Victoria Desert surrounding Jubilee Lake. The north west of the application area borders the Neale Junction Nature Reserve and the north of the application area adjoins the Ngaanyatjarra Native Title Determination area. The south east of the application area borders the Great Victoria Desert Nature Reserve and the balance of the eastern side of the application area borders the Spinifex Native Title Determination Area. Tjuntjuntjarra is an Aboriginal community just outside the claim area beyond the southern boundary.
Legal Status: Registered on the National Native Title Register
Legal Reference: Tribunal file no.: WCD2014/005; Federal Court file no.: WAD6002/2002
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/1293.html?stem=0&synonyms=0&query=title(Pilki%20People%20and%20State%20of%20Western%20Australia%20)
Summary Information:
Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293

Between:

VICTOR WILLIS, BETTY KENNEDY, DANIEL (STEVIE) SINCLAIR AND GW (DECEASED) ON BEHALF OF THE PILKI PEOPLE (applicant);

and

STATE OF WESTERN AUSTRALIA, SHIRE OF MENZIES and NGAANYATJARRA COUNCIL (ABORIGINAL CORPORATION) (respondents).

Judge: McKerracher J

Where made: Pilki Dam, Western Australia

Determination:

Native title exists in the entire determination area identified in Schedule 1 of the Consent Determination. It consists of exclusive native title rights.

Native title is held by the Pilki People.

The nature of the exclusive native title rights and interests that exist over the determination area consist of the rights to:

- possession, occupation, use and enjoyment of the Determination Area as against the whole world including the right to access and take for any purpose the resources of the land and waters.

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

- traditional laws and customs of the native title holders; and
- laws of the State and the Commonwealth, including the common law.

There are no native title rights in or in relation to:

- minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Resources Energy Act 1967 (WA); or
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

Non-native title rights and interests that exist within the determination area:

(a) rights and interests held under grants from the Crown in right of the State or of the Commonwealth pursuant to statute or 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) 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;

(d) the right of a member of the public to use the alignment, as at the date of this determination, of the Connie Sue Highway, the Serpentine Lakes Road (also known as Anne Beadell Highway) and the Tjuntjuntjara Access Road; and

(e) 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.

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- the determination does not affect the validity of those 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; and
- otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, 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.

Areas to where s 47B of the Native Title Act applies:

- section 47B of the Native Title Act applies to disregard any extinguishment of native title by the creation of a prior interest in relation to the whole of the determination area, including the following:

- Pastoral Lease 0644/97 (held by Daniel Ryan for pastoral purposes)
- Pastoral Lease 2792/97 (held by James Cox for pastoral purposes)
- Pastoral Lease 2791/97 (held by George Martin for pastoral purposes)
- Pastoral Lease 2786/97 (held by Frederick Lowther for pastoral purposes)
- Pastoral Lease 2787/97 (held by Leslie Peel Iredale for pastoral purposes)
- Pastoral Lease 2788/97 (held by Charles Myers for pastoral purposes)
- Pastoral Lease 2798/97 (held by Alfred Soman for pastoral purposes)
- Pastoral Lease 2793/97 (held by Jack Campbell for pastoral purposes)
- Pastoral Lease 2785/97 (held by Andrew Macauley for pastoral purposes)
- Special Lease 3116/04329 (held by Maxwell Rex Elliot for the purpose of tourist camp - depot)
- OPA-50H (held by G.Scholl for the purpose of oil prospecting area)
- OPA-72H (held by J.S Cordy for the purpose of oil prospecting area)
- OPA-83H (held by Central Oil Prospecting Syndicate Ltd for the purpose of oil prospecting area)
- OPA-114H (held by C.J.R Le Mesurier for the purpose of oil prospecting area)
- OPA-126H (held by Frederick Thompson for the purpose of oil prospecting area)

Provisions relevant to the Native Title rights:

- within twelve months of 2 December 2014, a representative of the 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;
- in the event that there is no nomination within the time specified the matter is to be listed in the Court for further directions.
Detailed Information:
Background

The native title application was first made on 12 August 2002 and was registered on 18 April 2005. Following some amendments to the application and various case management conferences, agreement was reached about the existence of native title. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Pilki People as the holders of native title rights and interests over their country.

There were no overlapping or competing native title claims over the claim area.

The successful native title claim has provided the Pilki People with formal recognition of approximately 17,858 square kilometres of land.

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 Pilki People in relation to part of the land and waters covered by the Pilki claim. The signed document 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
  • State of Western Australia - Respondent
  • Ngaanyatjarra Council (Aboriginal Corporation) - Respondent
  • Shire of Menzies - Respondent
  • People
  • Victor Willis and others on behalf of the Pilki People - Native Title Applicants

  • Documents

    Map
    Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 - Schedule 4 Map of Determination Area - ( PDF)
    Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 - Determination extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Registers | State Government | Native Title Determination (Australia) | Native Title Applications/Claims (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia)

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