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Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940

Date: 2 September 2015
Sub Category:Consent Determination (Native Title Act)
Place:Located in the vicinity of Ashburton
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State/Country:Western Australia, Australia
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The determination area is outlined in Schedule 1 of the judgment. The applications cover an area of approximately 10,888 square kilometres of land and waters which lie between Exmouth and Tom Price in the Pilbara region of Western Australia.
Legal Status: Not registered on the National Native Title Register.
Legal Reference: Tribunal file no.: WCD2015/003; Federal court file no's.: WAD6007/2001, WAD126/2005.
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/940.html?stem=0&synonyms=0&query=chubby
Summary Information:
Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940

Puutu Kunti Kurrama People and Pinikura People #1 Determination: WAD 6007 of 2001

Between:

JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY AND DONNA MEYER (applicants);

and

STATE OF WESTERN AUSTRALIA, SHIRE OF ASHBURTON, YAMATJI MARLPA ABORIGINAL CORPORATION, HAMERSLEY IRON PTY LTD and ROBE RIVER MINING CO PTY LTD MARTIN LAWRENCE AVERY, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, ROCKLEA STATION PTY LTD and SAMCO BEEF PTY LTD (respondents).

Puutu Kunti Kurrama People and Pinikura People #2 Determination: WAD 126 of 2005

Between:

JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY and DONNA MEYER (applicants);

and

STATE OF WESTERN AUSTRALIA, API MANAGEMENT PTY LTD, DEBORAH ALICE AVERY, MARTIN LAWRENCE AVERY, BAMBI PTY LTD, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, LEANNE MARGARET CORKER, ANDREW NICHOLAS GLENN, JANETTE ANN GLENN, PETER ROBERT GREY, SUSAN JEAN GREY and RED SKY STATIONS PTY LTD (respondents).

Judge: McKerracher J

Where made: House Creek, Western Australia

Determination:

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

Native title is held by the Puutu Kunti Kurrama People and Pinikura People.

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

- the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Determination Area;
- the right to hunt, fish, gather, take and use the traditional resources of the land;
- the right to take and use water;
- the right to engage in cultural activities on the Determination Area, including:
(i) visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and
(ii) conducting ceremony and ritual, and the transmission of cultural knowledge; and
- the right to be accompanied onto the Determination Area by those people who, though not native title holders, and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are:
(i) spouses, parents or children of the native title holders; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.

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 Puutu Kunti Kurrama and Pinikura People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

The native title rights and interests do not confer:

- possession, occupation, use and enjoyment on the Puutu Kunti Kurrama and Pinikura People to the exclusion of all others; or
- a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

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);
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
- water captured by the holders of the Other Interests pursuant to those Other Interests.

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

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:
1. Reserves
(a) The following reserves:
Reserve No.Current Purpose
1108Watering Place
1111Watering Place
1235Watering Place for Travellers & Stock
1236Watering Place for Travellers & Stock
4700Water
9701De Grey Mullewa Stock Route
17673Addition to De Grey Mullewa Stock Route
40902Geodetic Station
40903Geodetic Station
40904Geodetic Station
40905Geodetic Station
40906Geodetic Station
40907Geodetic Station
40908Geodetic Station
46122Conservation Park

(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;
(c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and
(d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

2. Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
Pastoral LeaseStation Name
3114/0647 (PL N050360)Wyloo
3114/1014 (PL N050594)Glenflorrie
3114/1096 (PL N049833)Nanutarra
3114/1166 (PL N050372)Rocklea
3114/1218 (PL N050036)Ashburton Downs
3114/1236 (PL N049418)Kooline
3114/1262 (PL N049852)Red Hill
3114/1267 (PL N050169)Mount Stuart
3114/1277 (PL N050438)Hamersley
398/782 (PL N050545)Cheela Plains

3. Mining Tenements and Petroleum Interests
(a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:

(i) Mining Leases
Tenement IDTenement IDTenement ID
M 08/7M 08/315M 08/477
M 08/99M 08/455M 08/495
M 08/149M 08/456M 47/1430
M 08/196M 08/468M 47/1488
M 08/222M 08/469M 47/1489

(ii) Exploration Licences
Tenement IDTenement IDTenement IDTenement ID
E 08/691E 08/2131E 47/468E 47/1783
E 08/1166E 08/2132E 47/469E 47/1784
E 08/1187E 08/2145E 47/470E 47/1785
E 08/1189E 08/2146E 47/472E 47/1786
E 08/1283E 08/2157E 47/662E 47/1787
E 08/1292E 08/2199E 47/778E 47/1788
E 08/1330E 08/2200E 47/780E 47/1832
E 08/1393E 08/2251E 47/781E 47/1846
E 08/1408E 08/2252E 47/783E 47/1850
E 08/1516E 08/2258E 47/892E 47/1861
E 08/1627E 08/2271E 47/942E 47/1863
E 08/1628E 08/2293E 47/1038E 47/1869
E 08/1629E 08/2294E 47/1134E 47/1879
E 08/1631E 08/2295E 47/1141E 47/1914
E 08/1649E 08/2296E 47/1154E 47/1988
E 08/1650E 08/2332E 47/1194E 47/2035
E 08/1712E 08/2364E 47/1195E 47/2037
E 08/1741E 08/2393E 47/1196E 47/2143
E 08/1744E 08/2395E 47/1218E 47/2160
E 08/1745E 08/2416E 47/1277E 47/2171
E 08/1763E 08/2418E 47/1299E 47/2215
E 08/1842E 08/2420E 47/1300E 47/2236
E 08/1843E 08/2482E 47/1301E 47/2268
E 08/1844E 08/2485E 47/1302E 47/2292
E 08/1845E 08/2490E 47/1351E 47/2327
E 08/1878E 08/2496E 47/1373E 47/2333
E 08/1915E 08/2498E 47/1395E 47/2378
E 08/1916E 08/2499E 47/1396E 47/2442
E 08/1933E 08/2512E 47/1415E 47/2587
E 08/1949E 08/2542E 47/1448E 47/2636
E 08/1950E 08/2555E 47/1500E 47/2729
E 08/1961E 08/2556E 47/1533E 47/2759
E 08/1964E 08/2558E 47/1535E 47/2834
E 08/1985E 08/2559E 47/1549E 47/2909
E 08/1986E 08/2560E 47/1553E 47/2910
E 08/1997E 08/2565E 47/1649E 47/2911
E 08/2000E 08/2566E 47/1650E 47/2912
E 08/2003E 08/2567E 47/1677E 47/2987
E 08/2034E 08/2568E 47/1679E 47/3057
E 08/2040E 08/2570E 47/1682E 47/3080
E 08/2055E 08/2627E 47/1693E 47/3081
E 08/2056E 08/2652E 47/1703E 47/3117
E 08/2065E 08/2653E 47/1725E 47/3133
E 08/2067E 08/2658E 47/1728E 47/3150
E 08/2114E 47/16E 47/1773E 47/3151
E 08/2130E 47/45E 47/1779E 47/3152

(iii) Prospecting Licences
Tenement IDTenement IDTenement ID
P 08/516P 47/1340P 47/1639
P 08/531P 47/1342P 47/1645
P 08/532P 47/1390P 47/1647
P 08/543P 47/1391P 47/1649
P 08/546P 47/1392P 47/1650
P 08/556P 47/1393P 47/1663
P 08/565P 47/1394P 47/1664
P 08/646P 47/1395P 47/1665
P 08/653P 47/1396P 47/1666
P 47/1237P 47/1397P 47/1667
P 47/1270P 47/1398P 47/1668
P 47/1278P 47/1399P 47/1669
P 47/1313P 47/1400P 47/1670
P 47/1316P 47/1401P 47/1671
P 47/1317P 47/1402P 47/1672
P 47/1318P 47/1403P 47/1673
P 47/1328P 47/1404P 47/1674
P 47/1330P 47/1423P 47/1675
P 47/1332P 47/1427P 47/1693
P 47/1333P 47/1474P 47/1694
P 47/1334P 47/1545
P 47/1336P 47/1554
P 47/1338P 47/1637
P 47/1339P 47/1638

(iv) Miscellaneous Licences
Tenement IDTenement IDTenement ID
L 08/12L 08/56L 08/107
L 08/13L 08/63L 08/113
L 08/14L 08/69L 08/124
L 08/15L 08/81L 47/141
L 08/26L 08/85L 47/153
L 08/31L 08/91L 47/184
L 08/44L 08/92L 47/185
L 08/46L 08/103L 47/232

(v) Retention Licences
Tenement ID
R 47/7

(vi) General Purpose Lease
Tenement ID
G 47/1227

(b) The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:
Tenement IDTenement Type
PL24Pipeline Licence
F924685Easement

(c) The agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement:
Tenement IDTenement Type
AML 7000004Mining lease

4. Access to Mining and Petroleum Areas
(a) Without limiting the operation of any other clause in Schedule Four, but subject to clause 4(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest including those referred to in clause 3 of Schedule Four to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.
(b) Nothing in clause 4(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 4(a).
(c) Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clause 3 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

5. Indigenous Land Use Agreements
(a) The RTIO and PKKP People Indigenous Land Use Agreement (Area Agreement) dated 15 November 2012, and registered on the Register of Indigenous Land Use Agreements on 24 April 2013 (Tribunal No. WI2012/011), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that ILUA.

6. Other
The following rights and interests:
(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;
(b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under the common law, including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate; and
(iii) the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;
(d) The right to access the Determination Area by:
(i) an employee, agent or instrumentality of the State;
(ii) an employee, agent or instrumentality of the Commonwealth; and
(iii) an employee, agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty;
(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 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, the following places in the Determination Area:
(i) waterways;
(ii) beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993;
(f) Any other:
(i) legal or equitable estate or interest in the land or waters; or
(ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters; or
(B) an estate or interest in the land or waters; or
(iii) restriction on the use of the land or waters, whether or not annexed to other land or waters.

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.

Rights of the applicant, the State of Western Australia and any respondents:

- to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area;
- to clarify the relationship between the native title rights and interests and Easement F924685 if a court of competent jurisdiction should find that its creation did not affect native title.

Provisions relevant to the Native Title rights:

- within 6 months of the date upon which these orders are made a representative of the common law holders of the native title rights and interests is to nominate in writing to the Federal Court (and copied to the parties) a prescribed body corporate to hold the native title rights and interests;

- these rights and interests will be held in trust by the nominated prescribed body corporate;

- native title is held in trust for the Budjiti People.
Detailed Information:
Background

The native title application Puutu Kunti Kurrama People and Pinikura People #1 was filed on 30 Octover 2001 and Puutu Kunti Kurrama People and Pinikura People #2 was filed on 1 June 2005, and has since been amended to reflect the final decision of the Budjiti People about their claim. It was an application under section 61 of the Native Title Act 1993 (Cth) for the recognition of the Puutu Kunti Kurrama People and Pinikura People as the holders of native title rights and interests over their country.

Justice McKerrarcher heard preservation evidence on 12 and 13 August 2008 at various on-country locations in the claim area from the following witnesses: Chloe Hayes, Maudie Downton and Maggie Drage.

There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the claim.

The successful native title claim has provided the Puutu Kunti Kurrama People and Pinikura People with formal recognition of approximately 10,888 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 Puutu Kunti Kurrama People and Pinikura People in relation to part of the land and waters covered by the 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
  • Shire of Ashburton - Respondent
  • Yamatji Marlpa Aboriginal Corporation - Respondent
  • Hamersley Iron Pty Ltd - Respondent
  • Robe River Mining Company Pty Ltd - Respondent
  • Cheela Plains Pastoral Co Pty Ltd - Respondent
  • Rocklea Station Pty Ltd - Respondent
  • Samco Beef Pty Ltd - Respondent
  • API Management Pty Ltd - Respondent
  • Bambi Pty Ltd - Respondent
  • Red Sky Stations Pty Ltd - Respondent
  • PKKP Aboriginal Corporation
    • People
  • John Ashburton and others on behalf of the Puutu Kunti Kurrama People and the Pinikura People - Native Title Applicant

    • Documents

    Document
    Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940 - Consent Determination Extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Native Title (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Native Title Determination (Australia) | Native Title Applications/Claims (Australia) | Aboriginal Corporation (Australia) | Native Title Applicants | Native Title Claimants (registered) (Australia) | Native Title Claimants (unregistered) (Australia)
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    Created:Saturday, 12 December 2015
    Modified:Tuesday, 5 January 2016
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