Back to search results

printable versionPrint this page

Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247

Category: Agreement
Date: 21 November 2014
Sub Category:Consent Determination (Native Title Act)
Location:East of Norseman, Western Australia, Australia
The determination area is outlined in Schedule 1 of the judgment. The determination area consists of approximately 102,000 square kilometres of land and is located east of Norseman in Western Australia.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Tribunal file no.: WCD2014/004; Federal Court file no.: WAD6020/1998.
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/516.html?stem=0&synonyms=0&query=title(Graham%20on%20behalf%20of%20the%20Ngadju%20People%20and%20State%20of%20Western%20Australia%20)
Summary Information:
Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (21 November 2014)

Between:

JOHN WALTER GRAHAM, BETTY BULLEN, AD (DECEASED), OD (DECEASED), SONNY GRAHAM , KATIE RAY, GEORGINA SCHULTZ, JACK SCHULTZ, MABEL WILSON and MAUREEN YOUNG ON BEHALF OF THE NGADJU PEOPLE (applicant);

and

STATE OF WESTERN AUSTRALIA, CITY OF KALGOORLIE - BOULDER, SHIRE OF COOLGARDIE, COMMONWEALTH OF AUSTRALIA, GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION, ANGLOGOLD ASHANTI AUSTRALIA LIMITED, BHP BILLITON NICKEL WEST PTY LTD, ST IVES GOLD MINING COMPANY PTY LIMITED, LAKE JOHNSTON PTY LTD, ARUBIDDY PASTORAL CO PTY LTD (ARUBIDDY STATION), CHILDARA PTY LTD (PONDANA STATION), COMMONWEALTH HILL PTY LTD (RAWLINNA STATION), JARAC PTY LTD, JEMARKIM NOMINEES PTY LTD, MILEURA CATTLE CO PTY LTD, NORGATE NOMINEES PTY LTD, SYDNEY ERNEST POND, RED SUN NOMINEES PTY LTD, GAYNOR MAREE SHIELDS (MADOONIA DOWNS), VICTOR EDWARD SHIELDS (MADOONIA DOWNS), CHRISTOPHER RYAN SOUTH, MONICA MARGARET SOUTH, VANESK PTY LTD (VANESK STATION), LESLIE HAMILTON PINNIGER and CEDRIC ANDERSON (respondents).

Judge: Marshall J

Where made: Norseman

Determination:

Native title exists in the entire determination area. It consists of areas which have exclusive native title rights and areas which have non-exclusive native title rights.

Native title is held by the Ngadju People.

Non-exclusive native title title rights and interests that exist over the Determination Area consist of the following rights:

- the right to hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;
- the right to live, to camp, to erect shelters and other structures and to travel over and visit;
- the right to do the following activities:
(i) engage in cultural activities;
(ii) conduct rituals or ceremonies;
(iii) hold meetings; and
(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;
- the right to have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds;
- the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

Exclusive native title title rights and interests that exist over the Determination Area consist of the following rights:

- the right to possession, occupation, use and enjoyment on the Ngadju people to the exclusion of all others.

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

- the laws of the State and the Commonwealth, including the common law; and
- the traditional laws and customs of the Ngadju People.

The native title rights and interests in the determination area do not confer exclusive rights 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.

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

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

Areas to which s 47A or s 47B of the Native Title Act apply:

- sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment of native title in relation to the land and waters referred to in Schedule 4 of the Determination.

Non-native title rights and interests that exist within the Determination Area:

- the non-native title rights and interests that exist within the Determination Area are set out in Schedule 5 of the Determination
- these include:
(i) reserves;
(ii) pastoral leases;
(iii) general leases;
(iv) mining tenements (including leases and licenses);
(v) roads;
(vi) easements;
(vii) petroleum pipeline license; and
(viii) other rights and interests.

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

- to the extent that any of the Other Interests are inconsistent with 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 existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

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 30 September 1998, and has since been amended to reflect the final decision of the Ngadju People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Ngadju 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 or any Indigenous respondents opposing the Ngadju claim.

The successful native title claim has provided the Ngadju People with formal recognition of approximately 102,000 square kilometres of land, 45,00 square kilometres (approximately 40% of the determination area) of which will be exclusive possession.

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 Ngadju People in relation to part of the land and waters covered by the Ngadju 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

Agreement
  • Ngadju Heritage Protection Protocol
  • Organisation
  • State of Western Australia - Respondent
  • City of Kalgoorlie-Boulder - Respondent
  • Shire of Coolgardie - Respondent
  • Goldfields Land and Sea Council Aboriginal Corporation - Respondent
  • AngloGold Australia Ltd - Respondent
  • BHP Billiton - Respondent
  • St Ives Gold Mining Company Pty Ltd - Respondent
  • People
  • John Walter Graham and others on behalf of the Ngadju People - Native Title Applicants
  • Ngadju People

  • Documents

    Map
    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Schedule 3 Maps of the Determination Area - Set 1 of 2 - ( PDF)
    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Schedule 3 Maps of the Determination Area - Set 2 of 2 - ( PDF)
    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Consent Determination Extract - ( PDF)
    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Schedule 2 Unclaimed Area - ( PDF)
    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Schedule 4 Areas to which ss 47A and 47B Apply - ( PDF)
    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Schedule 5 Other Interests - ( PDF)

    Glossary

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

    Google
    Top of page

    Was this useful? Click here to fill in the ATNS survey