Limmerick on behalf of the Ngarlawangga People v State of Western Australia [2016] FCA 1442

Pilbara Region

Limmerick on behalf of the Ngarlawangga People v State of Western Australia [2016] FCA 1442.

Between:

Tadgee Limmerick, Dianne Limmerick and Maisey Hyland (Applicants) and State of Western Australia, Central Desert Native Title Service Ltd, BHP Billiton Minerals Pty Ltd, BHP Coal Pty Ltd, Hamersley Exploration Pty Ltd, Hamersley Resources Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Lty Ltd, Mitsui-Itochi Iron Pty Ltd, North Mining Ltd, Renison Ltd, Robe River Ltd, Robe River Mining Co Pty Ltd, Bruce Michael Maguire, Pilbara Pastoral Co Pty Ltd, Chandra Louise Ridley, Sunblade Holdings Pty Ltd, Turee Pastoral Co Pty Ltd, and Telstra Corporation Limited (Respondents).

Judge: Barker J.

Where made: Western Australia

Determination:

Native title exists in part of the determination area: It consists of non-exclusive native title rights and interests.

Native title is held by the Ngarlawangga People.

Non-exclusive native title rights and interests:

Excluding the areas where native title has been found not to exist in the determination area (see below), the Ngarlawangga People have the following non-exclusive native title rights and interests:

• the right to enter and remain, camp, erect temporary shelters, travel over and visit any parts of the land and waters of the area;
• the right to hunt, fish, gather, take and use traditional land resources;
• the right to take and use water;
• the right to engage in cultural activities in the area, including visiting, maintaining, caring for and protecting places of cultural or spiritual importance, and conducting ceremony, ritual and the transmission of cultural knowledge; and
• the right to be accompanied to the area by those people who cannot themselves exercise any title right in the area, and are the non-Ngarlawangga spouses, parents or children of the Ngarlawangga People, or people entering in connection with traditional law and custom for the performance of ceremonies or cultural activities on the area.

These non-exclusive native title rights are subject to the laws of the Commonwealth and the State of Western Australia and the traditional law and customs of the Ngarlawangga People.

Additionally, these non-exclusive rights do not create any rights in relation to:

• Minerals as defined in the Mining Act 1978 (WA);
• Petroleum, geothermal energy resources or geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and
• Water captured by non-native title interest holders, pursuant to their other interests.

These rights do not include occupation, possession, use and enjoyment rights by the Ngarlawangga People to the exclusion of all others, or the right to control access to the area and its resources.

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

The following rights and interests were determined to exist on the date of the determination, as set out in Schedule 3 of the determination and the attached NNTT extract:

• the rights and interests of persons who have care, control and management of reserve no. 9698, Fortescue-Cue stock route;
• the rights and interests of persons who have care, control and management of reserve no.9700, De Grey-Peak Hill stock route;
• the rights and interests of persons entitled to access and use the Fotescue-Cue stock route for the respective purposes for which it is reserved;
• the rights and interests of persons entitled to access and use the De Grey-Peak Hill stock route for the respective purposes for which it is reserved;
• the rights and interests of persons holding leases over areas of the Forescue-Cue stock route;
• the rights and interests of persons holding leases over areas of the De Grey-Peak Hill stock route;
• the rights and obligations of Ethel Creek Station as the current holder of pastoral lease no. N049724;
• the rights and obligations of Bulloo Downs Station as the current holder of pastoral lease no. N049943;
• the rights and obligations of Prairie Downs Station as the current holder of pastoral lease no. N050553;
• the rights and obligations of Turee Creek Station as the current holder of pastoral lease no. N050676;
• the rights and interests of any lessee of lease no.GE H326098, for the purpose of cultivation and grazing;
• the rights of any interest holder in easement no. DF924685, created pursuant to the Goldfields Gas Pipeline Agreement Act 1994 and the Public Works Act 1902.
• the rights of any interest holder in easement no. J717065E, used as a rail spur;
• the rights relating to the use, care, control and management of Road 4, 5, 6, 7, and 8 (each of which is a portion of the Great Northern Highway) set out in the attached document, 'Schedule 2 - Maps of the Determination Area';
• the rights and interests of the mining tenements detailed in schedule 4, para 6, under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
• the rights and interests of the holder of petroleum title PL 42, granting a pipeline licence, under the Petroleum Pipelines Act 1969 (WA);
• the rights of the holders of a mining tenement or petroleum title to use portions of existing roads and tracks in the area as necessary to have access to the area subject of the tenement or title. These roads and tracks cannot be upgraded or improved upon other than to maintain them in reasonable repair of the same condition;
• the rights and interests of Telstra Corporation Limited in relation to its existing telecommunications facilities created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth), and the Telecommunications Act 1997 (Cth); and
• the rights and interests held as a result of the operation of the Rights in Water and Irrigation Act 1914 (WA).

Where conflict arises, the existence of native title rights does not prevent the exercise of a non-native title interest in the area.

Areas where native title does not exist within the determination area:

Native title in land and waters does not exist in the following areas. These areas are shaded pink in the attached 'Schedule 2 - Map of the determination area'.

• Reserve numbers 42690 and 42691, Repeater Station sites;
• Lease number GE J717063, allowing for construction, operation and maintenance of a rail spur line and associated access roads; and
• All roads considered public works as per the Native Title Act 1993.

Background:

The Ngaralwangga application was first filed on 8 April 2005 pursuant to s 61 of the Native Title Act 1993 (Cth), and was entered on the Register of Native Title Claims on 9 June 2005. The determination area detailed in the application had previously been excluded from the first consent determination in WA on 29 August 2000: the Nharnuwangga Wajarri and Ngarlawangga proceeding.

On 17 June 2013, the applicants sought to reduce the area of their registered application, allowing for the area removed to be claimed by the adjoining Nyiyaparli application. The court granted this change on the 10 October 2013.

The outcome of the consent determination has finally recognised the Ngarlawangga People's claim to approximately 6,103 square kilometres of land, a much awaited legal recognition of land and culture. The determination was celebrated by the Yamatji Marlpa Aboriginal Corporation as a successful outcome of an 11 year long legal process; CEO Simon Hawkins saying that the Ngarlawangga people 'have finally gained the recognition of a part of their country that was previously denied' (Yamatji Marlpa Aboriginal Corporation, Native Title recognised for Ngarlawangga People). Similarly, the Western Australian Government has congratulated the Ngarlawangga People on their achievement, proposing an enduring relationship between the parties to work towards a 'sustainable and productive future' (WA Attorney General's Office, Native title determination for the Pilbara).

Judgment Details:

Through negotiations, the parties to the application reached an agreement as to the terms of the determination and the form of orders that are appropriate to provide recognition of the native title rights and interests held by the Ngarlawangga People in the lands and waters of the determination area. The parties subsequently filed this signed written agreement with the Federal Court pursuant to s. 87 of the Native Title Act 1993 (Cth), and requested a determination without a hearing per s. 87(2).

The Court was satisfied that it would be appropriate and within its power to recognise the Ngarlawannga People as the native title holders for the determined area.

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