Lyndon on behalf of the Budina People v State of Western Australia [2017] FCA 1214

Registered on the National Native Title Register

Lyndon on behalf of the Budina People v State of Western Australia [2017] FCA 1214.

Between: Clive Lyndon, Lorna Corbett and Ruben Lyndon on behalf of the Budina People (APPLICANTS) and State of Western Australia, Shire of Carnarvon, Bambi Pty Ltd, Glen Stanley Dellar, Kurt Elezovich, Nikki Lorraine Elezovich, Lyndon Station Pty Ltd, Pindarra Pastoral Pty Ltd, Three Corners Properties Pty Ltd, DBNGP (WA) Nominees Pty Ltd (RESPONDENTS)

Judge: Griffiths J

Where made: Western Australia

Determination: Non-exclusive native title exists in parts of the determination area. The areas not subject to natve title are shown in pink on the maps in Schedule 2 of the determination agreement (see the attached document below).

Native title is held by the Budina People.

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

• the right to enter, remain on, erect temporary shelter, camp and travel over any part of the land and waters of the determination area;
• the right to take and use water;
• the right to use the traditional resources of the land and to hunt, fish and gather on the land;
• the right to engage in cultural activities, including - to visit places of cultural and spiritual importance and to maintain, care for and protect these places by carrying out physical and spiritual preservation activities;
• the right to be accompanied onto the Determination Area by those who are not Budina people but are non-Budina spouses, parents or children of Budina people or are people entering with connection with and in relation to the traditional law and custom to perform cultural activities or ceremonies.

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

• the rights and interests of persons who have the care, control and management of reserves 1886, 1887 and 1888;
• the rights and interests of holders of pastoral leases PL N049957, PL N049982, PL N050138, PL N050138, PL N050183, PL N050359, PL N050477 and PL N0505522;
• the rights and interests of holders of exploration licences under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA)
• the rights and interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor under the Dampier to Bunbury Pipeline Act 1997 (WA) as holders of pipeline licence PL 40;
• the rights of holders of mining tenement or petroleum title to use portions of existing roads and tracks in the determination area as necessary to have access to the area that is the subject of their tenement or title;
• the rights and interests granted by the Crown in accordance to law or in the exercise of its executive power;
• the rights and interests held due to the operation of laws of the State or Commonwealth, including the Rights in Water and Irrigation Act 1914 (WA);
• the rights and interests of members of the public under common law including the right to fish, navigate and use and enjoy roads in the determination area subject to the laws of Western Australia;
• the right of employees, agents and instrumentality's of the Commonwealth, State and Local governments to access the determination area as required in the performance of their legal duties;
• the existing rights to public access to waterways, coastal waters, beds and banks of waterways, beaches, stock routes and previously public places as at 31 December 1993 and any other legal or equitable interests in land or water or any other right so far as they are in accordance with the requirements of section 212(2) of the Native Title Act 1993 (Cth) and s 14 of the Titles (Validation) and Native Title (Effects of Past Acts) Acts 1995 (WA) as at 16th December 2017.
• the rights and interests of the holders of grants of estate in fee simple, reserves, roads, public works and easements for public works. See Schedule Three, Paragraph Two of the Native Title Register extract for details.

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

The native title is held in trust for the native title holders by the Budina Aboriginal Corporation per s 56(2)(a) of the Native Title Act 1993 (Cth).

Background: The Budina application for a determination of native title was first lodged in the Court on 18 June 2004 pursuant to s 61 of the Native Title Act 1993 (Cth) ('the NTA'), and was amended in 2005.

The application was considered for registration by the Native Title Registrar pursuant to s 190 A of the NTA. Having satisfied the criteria of the registration test, the application was entered on the Register of Native Title Claims on 22 August 2005. Connection material was submitted on behalf of the Applicant between September 2013 and April 2016 comprising anthropological reports on the Budina People's connection with the claim area. The State assessed this connection material and the court convened a conference of anthropological experts consisting of attendees on behalf of the Applicant and the State of Western Australia. The presiding Deputy Registrar of the court circulated to each party a report of the conference jointly created by the anthropological exports in attendance. This conference and a subsequent conference of experts resulted in the negotiating of a consent determination of native title between the parties. The parties applied for a determination without hearing to be made with the court.

Details of judgment Griffith J found that the proposed determination was appropriately made within the requirements of s 87 of the .

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