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Brown v State of Western Australia [2001] FCA 1462 (19 October 2001)
Binomial Name:	Federal Court of Australia
Date:	19 October 2001
Sub Category:	Consent Determination (Native Title Act)
Place:	Gibson Desert, west of Lake Mackay
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State/Country:	Western Australia, Australia
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	The area under claim comprises some 42,228 square kilometres of land, extending west from the border between Western Australia and the Northern Territory. It covers three reserves vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal people. They are subject to lease to the Ngaanyatjarra Land Council (Aboriginal Corporation). There is also a special pastoral lease held by the Aboriginal Lands Trust and sublet to the Land Council.
Legal Status:	Registered on the National Native Title Register
Legal Reference:	Federal Court No: QG6019/98 (or WAG 6019 of 1998);
Alternative Names:	Kiwirrkurra Determination
Subject Matter:	Native Title \| Recognition of Native Title or Traditional Ownership
URL:	http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1462.html
Summary Information:
Brown v State of Western Australia [2001] FCA 1462 Between: Jimmy Brown on behalf of the Kiwirrkurra People (APPLICANT) AND State of Western Australia, Telstra Corporation Limited, Aurora Gold (WA) Pty Ltd (RESPONDENTS) Judge: French J. Where: Muyin
Detailed Information:
This native title claim was filed by Jimmy Brown on behalf of the Kiwirrkurra People six years before the consent determination was eventually made. During those years there were discussions between the State of Western Australia and the applicants in an effort to reach a negotiated resolution of the claim. The process was further complicated when the Native Title Act 1993 was significantly amended in this period and there was a change of State government following an election in February 2001. The parties ultimately reached agreement about a consent determination in 2001 and the native title common law rights of the Kiwirrkurra People were formally recognized. The land is to be managed for the Kiwirrkurra People by a registered native title body corporate, the Tjamu Tjamu Aboriginal Corporation which will either hold the land on trust for the Kiwirrkurra people or the corporate body will perform functions set out in the Native Title Act 1993. As with the majority of consent determinations, the orders were made in respect of land which was either unallocated crown land, reserved land or land already held by, or for the benefit of, Aboriginal or Torres Strait Islander People. A Kiwirrkurra person has native title rights based on a common body of traditional law and culture on three levels: as an individual, as a member of one of the twenty local descent groups among the Kiwirrkurra People and as a member of the total group referred to as the 'Kiwirrkurra People'. The native title claimants helped establish their connection to the claim area via the anthropological report prepared in November 2000 by David Brooks. A 'connection report' is required by the Western Australian Government guidelines when negotiating native title. The claim area is notable because the impact of European settlement upon it and on the Aboriginal people has been little and late. Central Australia as a whole, including the Western Desert, was among the last areas of the continent to be affected by the expansion of British colonisation in Australia. The claim area has been particularly insulated because of its great distance from non-Aboriginal centres. Alice Springs is 700 kilometres to the east and is the main service centre for Kiwirrkurra. Balgo, which is itself an isolated settlement, is some 400 kilometres to the north. Similar distances to the west are purpose-built mining centres and the small Aboriginal communities of the Pilbara. It is a 450 kilometres drive south to the small community of Tjukurla. There were a number of other interests in the claim area which have been recognised by the consent determination. They include, three reserves created for the 'use and benefit of Aboriginal inhabitants' under the Land Administration Act 1997 which were controlled by an Aboriginal Lands Trust pursuant to the Aboriginal Affairs Planning Authority Act 1972. These three reserves were the subject of leases to Ngaanyatjarra Land Council with the Minister for Aboriginal Affairs and the Aboriginal Affairs Planning Authority for land to be held on trust for Aboriginal inhabitants. In addition, the Aboriginal Lands Trust leased pastoral land in an agreement with Minister for Lands under the Land Act 1933 and this land was in turn sub-leased to the Ngaanyatjarra Land Council. The native title applicants are deemed to be members of the Ngaanyatjarra Land Council and consequently the leases are the applicants exercise full authority pursuant to the terms of the leases over the whole claim area. Other interests in the land include those of Telstra Corporation Limited, which includes facilities installed in the claim area created pursuant to the Post and Telegraph Act 1901, the Telecommunications Act 1975, the Australian Telecommunication Corporation Act 1989 and the Telecommunications Act 1991 and the Telecommunications Act 1997. The Crown and the State of Western Australia also hold interests pursuant to any statute or valid executive or legislative acts which were current at the date of this determination, specifically the Rights in Water and Irrigation Act 1914. The interests of the Crown and State prevail in the case of conflict with a right held by a native title claimant.
Outcomes:
The Court orders by consent that: Order 2. Native title exists in relation to the Determination Area. Order 3. The native title rights and interests are held by the Kiwirrkurra people as the common law holders of the native title rights and interests. The Kiwirrkurra people are those people described in the Second Schedule. (a). The nature and extent of the native title rights and interests held by the Kiwirrkurra people in relation to the Determination Area are the right to possess, occupy, use and enjoy the land and waters of the Determination Area to the exclusion of all others, including: (i). the right to live on the Determination Area; (ii). the right to make decisions about the use and enjoyment of the land and waters of the Determination Area; (iii). the right to hunt and gather, and to take water and other traditionally accessed resources (including ochre) for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual and communal needs; (iv). the right to control access to, and activities conducted by others on, the land and waters of the Determination Area; (v). the right to maintain and protect sites which are of significance to the Kiwirrkurra people under their traditional laws and customs; and (vi) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the Determination Area. (b). The native title rights and interests are exercisable in accordance with the traditional laws and customs of the Kiwirrkurra people. Order 5. Notwithstanding anything in this determination: (a) the native title rights and interests include ochre but do not include other minerals and petroleum and (b) the native title rights and interests only confer on the Kiwirrkurra people such rights in relation to flowing and subterranean waters as exist at law; (c) nothing in this paragraph is intended to affect the rights of the Kiwirrkurra people (including any registered native title body corporate) and Order 6. The nature and extent of other interests in relation to the Determination Area are; Reserves for the "use and benefit of Aboriginal inhabitants" (a) Reserves all classified as class "A" reserves under the Land Administration Act 1997, and under the control and management of the Aboriginal Lands Trust pursuant to section 46 of the Aboriginal Affairs Planning Authority Act 1972; (b) The rights and interests of the Lessee, being the Ngaanyatjarra Land Council (Aboriginal Corporation) of Lease 245 of Reserves 40783 and 40786 made on 29 November 1988 for a term of 99 years between the Aboriginal Lands Trust, the Minister for Aboriginal Affairs, the Aboriginal Affairs Planning Authority and the Ngaanyatjarra Land Council (Aboriginal Corporation), as far as the Lessee's rights and interests affect the native title rights and interests of the common law holders; (c) The rights and interests of the Lessee, being the Ngaanyatjarra Land Council (Aboriginal Corporation) of Lease 243 of Reserve 24923 made on 29 November 1988 for a term of 99 years between the Aboriginal Lands Trust, the Minister for Aboriginal Affairs, the Aboriginal Affairs Planning Authority and the Ngaanyatjarra Land Council (Aboriginal Corporation), as far as the Lessee's rights and interests affect the native title rights and interests of the common law holders; (d) The interests of Telstra Corporation Limited: (i) as the owner and operator of the telecommunications facilities installed within the Determination Area, including the Tietkins DRCS Radio Transmitter, Jazza DRCS Radio Transmitter, Angas DRCS Radio Transmitter, Pollock Hills DRCS Radio Transmitter, Top Up Rise DRCS Radio Transmitter, Nyinmi DRCS Radio Transmitter, customer radio terminals and cabling; and (ii) Created pursuant to the Post and Telegraph Act 1901, the Telecommunications Act 1975, the Australian Telecommunication Corporation Act 1989, the Telecommunications Act 1991, and the Telecommunications Act 1997. (e) Any other rights and interests granted by the Crown pursuant to statute or by any valid executive or legislative act, which are current at the date of this determination. (f) Any other rights or interests held by or under the Crown by the force and operation of the laws of the State or the Commonwealth as may be current at the date of this determination, including the force and operation of the Rights in Water and Irrigation Act 1914. (g) Rights and interests of members of the public arising under the common law. (h) A right of any employee or agent of the State, its agencies and instrumentalities, and of the Shire of East Pilbara, its employees and agents, to access the Determination Area (subject to the laws of the State) for the bona fide performance of their duties. Order 7. 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. Order 8. The relationship between the native title rights and interests and the other rights and interests is that: (a) The other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and (b) For the avoidance of doubt, 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 rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.