Taylor v State of Western Australia [2016] FCA 1191

Between:

Muuki Taylor, Waka Taylor, Donald Moko and Janice Bullen (APPLICANTS) and
State of Western Australia and Yamatji Marlpa Aboriginal Corporation and Attorney-General of the Commonwealth of Australia (intervener) (RESPONDENTS)

Between:
Muuki Taylor, Waka Taylor, Daniel Walbidi, Meridoo Walbidi, Corina Jadai and Simon Frank (APPLICANTS) and
State of Western Australia and Yamatji Marlpa Aboriginal Corporation and Attorney-General of the Commonwealth of Australia (intervener) (RESPONDENTS)

Judge: McKerracher J

Where made: Western Australia

Determination:

Native title exists in the entire determination area.

It consists of non-exclusive native title rights.

Native title is held by the descendants of the following people:
Japurtujukurr, Walparti, Kulurnanyuta/Tommy Gardine, KupaKupa, Junamuya / Jimmy Gardiner, Jutuparni, Ngartiwarta and Mukuly Mukuly.

The exclusive native title rights over the entire determination area consist of:
- the native title rights and interests in relation to the determination area are the rights to possession, occupation, use and enjoyment of the determination area to the exclusion of all others.

The above exclusive native title rights are subject to and exercisable in accordance with the laws of the State, Commonwealth, common law and the traditional laws and customs of the native title holders.

Non-native title rights and interests that exist in the determination area include:
- for the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water;
- minerals as defined in the Mining Act 1904 (WA (repealed) and the Mining Act 1978(WA), except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); and
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
- rights and interests held under grants from the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power or otherwise conferred by statute;
- rights or 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);
- the rights and interests of the State, Commonwealth or any local Government authority to access the determination area, as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
- the existing public access and enjoyment of waterways, the beds and banks or foreshores or waterways, areas that were public places at the end of 31 December 1993 pursuant to the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

The Kulyakartu (Aboriginal Corporation) RNTBC as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and holds the native title holders rights and interests in trust.

Background

This case involved two claims, the Kulyakartu and Kulyakartu #2 which were heard together. Kulyakartu was filed in 2005 and has been amended a number of times since. Kulyakartu #2 was filed in 2015 and overlaps with the original claim area. The second claim was filed with the intention of applying s 47B of the Native Title Act 1993 (Cth) to permit a determination of exclusive native title rights (AIATSIS, 2016).

The Commonwealth Attorney-General is a party to the proceeding due to the possibility that the State may have been entitled to compensation (Taylor v State of Western Australia [2016] FCA 1191 at para at 5).

The applications were also split into two parts due to a petroleum exploration permit existing on one part of the determination area.

The determination area is located in a remote environment that has never been the subject of a non-Aboriginal settlement with the nearest community being Punmu that is located 60kms south west of the determination area (Taylor v State of Western Australia [2016] FCA 1191 at para 18).

Details of Judgment

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 native title holders in relation to the part of the land and waters covered by the two applications. 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.

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