May v State of Western Australia  FCA 1333
|Binomial Name: ||Federal Court of Australia|
|Date: ||27 November 2012|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||Great Sandy Desert|
|State/Country:||Western Australia , Australia|
|Parcels of land near Lake Tobin and Mount Elliott in the Great Sandy Desert.|
|Legal Status: ||Registered on the National Native Title Tribunal Register of Native Title Determinations.|
|Legal Reference: ||Tribunal file no.:
Federal Court no.:
|Alternative Names:||Ngurrara 2 - Area C
|Subject Matter:||Access | Native Title | Recognition of Native Title or Traditional Ownership|
|Summary Information: |
Tommy May, George Jabadah, Ricky Thomas and Maria Hand on behalf of the Ngurrara People
The State of Western Australia, Shire of Halls Creek and Backreef Oil Pty Ltd (RESPONDENTS)
Judge: Gilmour J
Where made: Perth
Native title is held communally by the Ngurrara People:
Native title exists over the determination area. It consists of exclusive native title rights.
The native title rights and interests that exist over land in the determination area include:
- the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
In relation to flowing and subterranean waters in the exclusive native title area, the following non-exclusive rights apply:
- the right to hunt, fish and gather from the water; and
- the right to take and use the water for personal, domestic and non-commercial communal purposes.
Non-native title rights and interests that exist within the determination area can be summarised as
- The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves: Reserve 5279 for the use and benefit of Aboriginal inhabitants, Reserve 5280 for the for the use and benefit of Aboriginal inhabitants, Reserve 22956 for the for the use and benefit of Aboriginal inhabitants,
- Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
- Rights and interests, including licences and permits, granted by the Crown pursuant to statute or in the exercise of executive power;
- Rights or interests held under laws of the State or the Commonwealth including under the Rights in Water and Irrigation Act 1914 (WA);
- The right to access land by an employee or agent or instrumentality of the State, the Commonwealth, or local Government authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
- Rights of the public to access any roads within Determination Area where access to such roads is in accordance with the common law and to access the Canning Stock Route, including that portion of the Canning Stock Route that traverses Reserves 5279 and 5280;
- Rights of the holders of petroleum interests under the Petroleum Act 1967 (WA) to use the roads and tracks in Determination Area in order to have access to such petroleum interests. This does not allow for any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair;
- Any existing public access rights to and enjoyment of waterways or the beds and banks or foreshores of waterways or stock routes.
Provisions Relevant to the Native Title Rights
The native title rights and interests include the right to take and use ochre as ochre is not a mineral pursuant to the Mining Act 1904 (WA), but does not include the right to other minerals, petroleum and geothermal energy resources as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA).
The Yanunijarra Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
|Detailed Information: |
The Ngurrara #2 application was filed on the 3 December 2008 in respect of land and waters located in the Great Sandy Desert of Western Australia not subject to the determination of native title in Kogolo v State of Western Australia  FCA 1703 (Kogolo).
In Kogolo, the parties agreed to omission of the Excluded Area from the determination to allow for the application of ss 47, 47A and 47B of the Native Title Act 1993 (Cth) and the commencement of a new proceeding in relation to this area known as Determination Area C.
Part A of the Ngurrara Area was determined in 2007 with recognition of native title rights and interests covering an area comprised of about 77,810 square kilometers in the Kimberley region of Western Australia on the northern boundary of the Great Sandy Desert between the Kimberley pastoral leases and the Percival lakes. The majority of the land was unallocated crown land.
Part B of the Ngurrara claim was determined in 2012 and covers a further 1,721 square kilometres of land in the Kimberley Region. It specifically regards land that is either reserve or former reserve land. The claim was filed with the Federal Court on 3 December 2008, following a decision in 2007 to split up the Ngurrara claim into two separate claims. At the time that the consent determination was made in regards to Part A of the Ngurrara People's native title claim, Part B of that claim was still in mediation.
Details of Judgement
The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to certain land and waters covered by the Ngurrara #2 Application. This covers a portion of Reserve 5279 and Reserve 5280 (both being preserved for the purpose of use and Benefit of Aboriginal People) and Reserve 22956 (vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal People.
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.