Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No. 2) [2016] FCA 1260

Hamersley Range, the Pilbara Region.

Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260

Between:

Neil Finlay, Jack Alexander, Gloria Lockyer and Mark Lockyer (Applicants) and State of Western Australia, Commonwealth of Australia, Shire of Ashburton, Yamatji Marlpa Aboriginal Corporation, Hamersly Exploration Pty Ltd, Hamersly Iron Pty Ltd, Mineralogy Pty Ltd, Deborah Alice Avery, Martin Lawrence Avery, John Digby Corker, Leanne Margaret Corker, Yalleen Pastoral Company Pty Ltd, Mistui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Ltd, North Mining Ltd, Robe River Mining Co Pty Ltd and Sumitomo Metal Australia Pty Ltd (Respondents)

Judge: Barker J

Determination:

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

Native title is held by the Robe River Kuruma People

Exclusive native title rights and interests:

The nature and extent of native title rights and interests in relation to the Exclusive Area (set out in Schedule Three) is:

• except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of the exclusive area to the exclusion of all others; and
• in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including: the right to hunt on, fish from, take and use the traditional resources of the flowing and underground waters; and the right to take and use the flowing underground waters.

Non-exclusive native title rights and interests:

The Robe River Kuruma People have the following non-exclusive native title rights and interests (set out in the determination) , including the right to conduct activities necessary to give effect to these native title rights. 

The right to:

• live, being to enter and remain, camp and erect temporary shelters and other structures for that purpose and to travel over and visit any part of the non exclusive area;
• hunt, fish, gather and use the traditional resources of the non exclusive area;
• take and use water;
• engage in cultural activities and the transmission of cultural knowledge including: visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and conducting ceremony and ritual, including burial and burial rights;
• to be accompanied by those people who, though not Robe River Kuruma People and who (for the avoidance of doubt) cannot themselves exercise any native title rights are: the non-Robe River Kuruma spouses, parents or children of the Robe River Kuruma People; or persons required by traditional law and custom for the performance of ceremonies or cultural activities on the Non Exclusive Area.

There are no native title rights and interests in the determination area in relation to:

• minerals as defined in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);
• petroleum as defined 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 lawfully captured by the holders of other interests.

The non-exclusive native title rights and interests do not confer possession, occupation, use and enjoyment on the Robe River Kuruma People to the exclusion of all others; nor a right to control the access of others to the land or waters of the determination area.

The non-exclusive native title rights and interests are subject to and exerciserable in accordance with the laws of the State, the Commonwealth, and the traditional laws and customs of the Robe River Kuruma People.

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

The following rights and interests exist in the determination area:

• rights and interests granted by the Commonwealth or the State, including: pastoral leases, mining leases, exploration licenses and prospecting licenses;
• rights and interests held under the of laws of the State or the Commonwealth, including the Rights in Water and Irrigation Act 1914 (WA);
• rights and interests of members of the public under law, including: the right to fish; the public right to navigate; and any legal right to use and enjoy any roads in the determination area;
• the right to access the determination area by: an employee, agent or instrumentality of the State, the Commonwealth or any local government authority as required in the performance of their duty where access would be permitted to private land;
• any existing public access to and enjoyment of: waterways; beds and banks or foreshores of waterways; coastal waters; beaches; stock routes; and areas that were public places at the end of 31 December 1993;
• any other: estate or interest in the land or waters of the determination area that exists under law. And any right, charge, power or privilege over or in connection with the land or waters of the area, or an estate or interest in the land or waters of the area; or restriction on the use of the land or waters of the determination area whether or not annexed to the other land or waters.
  

Relationship between native title and non-native title interests:

To the extent that other interests are inconsistent with the native title rights and interests, the native title rights and interests continue to exist, but have no effect relating to the other interests. The native title rights do not prevent any activity required or permitted by other interests. These activities will prevail over native title rights, but do not extinguish them. 

The Kuruma Marthudunera Aboriginal Corporation RNTBC ICN 7612, as the prescribed body corporate, holds the determined native title in trust for the Robe River Kuruma People pursuant to 56(2)(b) of the Native Title Act 1993 (Cth).

Access to the full determination is available via the URL link.

Background

The Robe River Kuruma People lodged two claims for native title in 1998. These claims were joined together in 1999. There were two parts to the claim, Part A which covers a 4,109 square kilometer area, and Part B which is an adjacent 5,720 square kilometer area (Barrass). The areas in question include middle Robe, the Bungaroo Valley and Buckland Ranges.

In 2016, the first Kuruma Marthudunera decision was reached regarding Part A and the Robe River Kuruma People were found to hold native title over most of the area. Negotiations concerning the consent determination for Part A took 18 months longer than expected, and resulted in five significant sites being determined as exclusive possession areas.

In 2018, the Robe River Kuruma People and respondents arrived at an agreement and the Federal Court handed down a consent determination stating that the Robe River Kuruma People hold native title over Part B (Hirini).

Details of Judgment

The Robe River Kuruma applicants, the State, and other parties successfully negotiated and agreed to consent orders being made by the Federal Court. The parties filed this agreement with the Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The Court was satisfied that it was appropriate and within its power to recognise the Robe River Kuruma People as the native title holders for most of the determination area.

Native title exists in parts of the determination area

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