Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia [2017] FCA 795

Area encompassing parts of Widgiemooltha, Higginsville & Carnilya Hill.

Between John Walter Graham, Betty Bulleen, AD (Dec), Ollan Dimer (Dec), Sonny Graham, Katie Ray, Georgina Schultz, Jack Schultz, Mabel Wilson and Maureen Young on behalf of the Ngadju people (Applicants); and the State of Western Australia, City of Kalgoorlie-Boulder, Shire of Coolgardie, Goldfields Land & Sea Council Aboriginal Corporation, BHP Billiton Nickel West Pty Ltd, St Ives Gold Mining Company Pty Limited, Arubiddy Pastoral Co Pty Ltd, Childara Pty Ltd, Commonwealth Hill Pty Ltd, Jarac Pty Ltd, Jemarkin Nominees Pty Ltd, Mileura Cattle Co Pty Ltd, Norgate Nominees Pty Ltd, Sydney Ernest Pond, Red Sun Nominees Pty Ltd, Christopher Ryan South, Monica Margaret South, and Vanesk Pty Ltd (Respondents).

Judge Griffiths J

Determination

Native title exists in all the determination area.

Native title is held by the Ngadju People.

The exclusive native title rights over the 'exclusive' determination area are:

• the right to hunt and fish (excluding commercial fishing), to gather
  and use natural resources of the area, such as food and medicinal
  plants and trees, timber and ochre and to have access and use of potable
  water;
• the right to live, camp, erect shelters and other structures, to travel over and visit;
• the
  right to engage in cultural activities, rituals, ceremonies, hold
  meetings, and teach physical and spiritual attributes of places and
  areas of importance on or in the land and waters;
• the right to
  have access, maintain and protect, places and areas of importance on or
  in the land and waters, including Dreaming sites, waterholes and
  ceremony grounds; and
• the right to share or exchange subsistence and other traditional resources obtained in or from the land and waters.

These exclusive rights become 'non-exclusive' when in the non-exclusive areas.

The Non-exclusive native title rights over the 'non-exclusive' determination area are:

• the right to hunt and fish (excluding commercial fishing), to gather
  and use natural resources of the area, such as food and medicinal
  plants and trees, timber and ochre and to have access and use of potable
  water;
• the right to live, camp, erect shelters and other structures, to travel over and visit;
• the
  right to engage in cultural activities, rituals, ceremonies, hold
  meetings, and teach physical and spiritual attributes of places and
  areas of importance on or in the land and waters;
• the right to
  have access, maintain and protect, places and areas of importance on or
  in the land and waters, including Dreaming sites, waterholes and
  ceremony grounds; and
• the right to share or exchange subsistence and other traditional resources obtained in or from the land and waters.

See maps of the 'non-exclusive' areas in Schedule 3 attached below.

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

• the rights and interests of the holder of pipeline licence PL 59 under the Petroleum Pipelines Act 1969 (WA);
• the rights and interests relating to the licences granted pursuant to the Rights in Water Act, including the Goldfields Groundwater Area Proclamation (dated 20/11/1990);
  
• the rights and interests relating to the material pits listed in Schedule 5 section 5.7, located near the Coolgardie-Esperance Highway;
• the rights and interests relating to current valid or validated licences and permits granted by the Crown in right of the State or of the Commonwealth, pursuant to statute;
• the rights and interests relating to the force and operation of the Rights in Water Act and the Land Administration Act 1997 (WA);
• the rights and interests to access the determination area by: an employee, agent or instrumentality of the State/Commonwealth/Local Government Authority permitted by law in the performance of their duty;
• the rights and interests of members of the public to access and enjoyment of the following places within the determination area: waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes, and areas that were public places at the end of 30 June 1995.
  

Non-exclusive native title rights and interests will prevail over the non-exclusive native title.

Ngadju Native Title Aboriginal Corporation (ICN 8297), as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held in trust for the native title holders.

Areas of Exclusive and Non-exclusive Native Title Rights:

The native title rights of
the Ngadju people are dependent on which area of the determination area
they are in.

Exclusive Native Title Rights:

Native title rights are exclusive within the "Exclusive area". This area is described in item 1.2 of Schedule 1 of the determination as comprising all the areas listed in Schedule 4, excluding all land and waters below the high watermark of the foreshore of the coastline including rivers, streams and estuaries that are affected by the ebb and flow of the tides. It is shaded pink on the map in Schedule 3 (see in documents below).

Non-exclusive Native Title Rights:

The "Non-exclusive area" means those parts of the determination area which are not in the unclaimed area or the exclusive area. This area is identified and shaded orange in the maps in Schedule 3 (see in documents below).

Background:

This determination is a combination of two other native title claims that were made on behalf of the Ngadju People, and which have been heard by the court since 1995.

Approx. 4 percent of the Ngadju application area was overlapped by two other native title claims from the Kalamaia Kabu(d)n People (WAD6216/1998) and Widji People (WAD6243/1998). In December 2011, the court made orders that the part of the Ngadju application area that didn't overlap with the two other claims would be referred to as the "Ngadju Trial Area proceeding". That hearing resulted in the making of the Ngadju Part A Determination in April 2016.

This current proceeding (Ngadju Part B Determination) covers the area that was not included in the previous Part A Determination.

Details of Judgement:

The signed agreement was 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. The court made orders by consent which recognise that the Ngadju people have, and always have had, native title rights and interests in the land within the determination area.

Related Entries

Documents

Glossary