Drury & Ors on behalf of the Nanda People v State of Western Australia [2018] FCA 1849

Central West Coast of Western Australia

The area is approximately 17,350km sq of land and water located in the Geraldton region of Western Australia, approximately 200 km south of Carnarvon and approximately 90 km north of Geraldton. It runs from Bluff Point near the southern boundary of the claim area, inland to just west of Dartmoor, north to just west of Muggon and across back to the coast just south of Freycinet Harbour. The Murchison River runs through the southern part of the claim area. There are also a number of waterways and tributaries that form part of the Murchison catchment area within the claim area that are significant to the Nanda People including Long Springs, Cement Slab, Bully Pool, Wilgie Mia Pool, and Syphon Pool. The Determination Area also includes some highly significant natural heritage areas: the Kalbarri National Park, the Zuytdorp Nature Reserve, and the Toolonga Nature Reserve. Most of the freehold and leasehold tenure within the Determination Area exists in and around the town of Kalbarri. Schedule Four identifies where native title does not exist within the Determination Area in Schedule One, and are generally shaded pink on the Schedule Two maps. This includes estates in fee simple, reserves, leases, roads, the Dampier to Bunbury Natural Gas Pipeline, railway and public works. The area is within the jurisdiction of the Shire of Murchison, Shire of Northampton, and Shire of Shark Bay.

Registered with the National Native Title Tribunal on the Native Title Register 28 November 2018. 

Drury on behald of the Nanda People v State of Western Australia [2018] FCA 1849 

Between: Violet Drury, Coleen Drage, John Stephen Drage, Steven Kelly (Father of Marrick Kelly), Steven Kelly (Grandson of Cornelius Kelly), William Mallard (Jnr), William Mallard (Snr), Nora Mallard, Gwen Mitchell, Helen Nutter, Annette Pepper, June Ruffin, Mary Tullock, Gerald John Whitby, Lorraine Whitby, and Janet Wilton on behalf of the Nanda People (Applicant)

and

State of Western Australia, Commonwealth of Australia, Yamatji Marlpa Aboriginal Corporation, BPP Oliver Super Pty Ltd, Calum Graham Carruth, Alan James Crawford, Harold James Crawford, James Michael Drew, Loreto Mary Drew, Gabor Holdings Pty Ltd, Vivian Roy Porter, Belinda Jean Sparkhall, and Telstra Corporation Limited (Respondents)

Nanda #2 (Federal Court File no.: WAD286 OF 2018): 

Between: Derek Drage, Helen Nutter, Annette Pepper, Douglas William Ryder and Delveen Whitby on behalf of the Nanda People (Applicant) 

and State of Western Australia and Commonwealth of Australia (Respondents)

Judge: Mortimer J.

Where made: Kalbarri Foreshore, Western Australia.

Determination

Native title exists in parts of the determination area

The determination consists of exclusive and non-exclusive native title rights and interests. 

Native title holders

Native title is held by Nanda Traditional Owners. 

Exclusive native title rights and interests over or part of the determination area

This is the right to possess, occupy, use, and enjoy the area, described in Schedule Three, to the exclusion of all others. An exception to this right is in relation to flowing and underground water.

In relation to flowing and underground water, rights include the right to use and enjoy the water flowing and underground water, including the right to fish from, hunt on, take, and use the resources of the water, and the right to take and use the water.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area generally shaded yellow in Schedule Two and described in paragraph 5 of the extract and include:

• the right to enter and remain on the non-exclusive area, camp, erect temporary shelters and travel over and visit part of the non-exclusive area;
• the right to hunt, fish, gather, and use resources;
• the right to take and use water; and
• the right to engage in cultural activities including visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity, conducting ceremony and ritual, the right to be accompanied onto the non-exclusive area by those who, though not native title holders are spouses, partners, parents or children of the native title holders, people who are members of the immediate family of a spouse, partner, parent or child of a native title holder, or people entering the determination area in connection with cultural activities or ceremonies. 

Other rights and interests in the determination area include:

• reserves: the rights and interests of the persons who have the care, control, and management of the reserves listed, the rights and the interests of the persons entitled to access and use the reserves, and the rights and interests of persons holding leases over areas of the reserves
• pastoral Leases: any rights and obligations of the pastoralists to manage the pasture and vegetation resources, livestock, and soils within the boundaries of the pastoral leases and the right to manage, conserve and regenerate the pasture for permitted use; 
• leases: any rights and obligations of the lessee to manage the pasture and vegetation resources, livestock, and soils within the boundaries of the pastoral leases and the right to manage, conserve and regenerate the pasture for permitted use;
• roads: the rights and interests of the persons who have the responsibility to care for, control, and manage those roads from time to time, and the rights and interests of the holders of the lease of roads from time to time to those leases; 
• taking Orders: the rights and interests of the government to possess the land for the purposes of highway widening;
• mining tenements: tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) and the rights and interests of those holders from time to time of those mining tenements: exploration licenses, mining leases, and miscellaneous licences;   
• petroleum interests: granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum (Submerged Lands) Act 1982 (WA) or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders: the Dampier to Bunbury Natural Gas Pipeline licence, including the interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister under the Dampier to Bunbury Pipeline Act 1997 (WA);
• access to Mining Tenements and Petroleum Interests: the rights and interests of the holders of a mining tenement or petroleum interests to use the roads and tracks when necessary to access the land subject of the tenement or interest (does not include the right to upgrade, extend, widen or otherwise scale up the road or track);
  
• Telstra Corporation Limited: the right to inspect the land, install, occupy and operate telecommunications facilities, to alter, remove, replace, maintain, repair, and ensure the proper functioning of its telecommunications facilities, the right for its employees, agents, or contractors to access the facilities, and any lease, license, permit access agreement or easement relating it its telecommunications facilities, including Licence No 2472/101;
• licences and permits granted by the Crown;
• rights and interests held by reason of the operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA); 
• rights and interests of the public: the public right to fish, the public right to navigate, the right to use and enjoy roads in the Determination Area when members of the public have the right to access, the public right to access and enjoy waterways, beds, banks or foreshores of waterways, coastal waters, beaches, stock routes, areas that were public places at the end of 31 December 1993;
  
• rights and interests of local, State, and Commonwealth government employees as required in their statutory or common law duty including for the purpose of pest management control and fire hazard management; and 
• any legal or equitable estate or interest in the land or waters of the determination area. 

See Schedule Five for further information about the non-native title rights and interests. 

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

The Nanda Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Nanda People. 

Full text of the determination is available via the URL link above.

Background

Two 1998 applications filed by the Nanda people claiming native title were combined into one in 2000 (WAD6136 of 1998), and amended in 2018. The two reasons for this 2018 amendment were:

1. to remove part of the Nanda application which was seaward of the lowest astronomical tide; and
2. to remove a second part because of an agreement reached with the native title claimant in the adjoining Malgana Application (WAD 6236 of 1998).

A further application was filed on 17 August 2018, prior to this amendment, known as Nanda #2 (WAD286 of 2018). This application sought the benefit of s 47B of the Native Title Act 1993 (Cth) (the NTA), and was identical to the Nanda application.  The applicants in the Nanda and Nanda #2 applications and the respondents to both applications (the parties) have agreed to the terms of a determination made in relation to the whole of the Nanda #2 application and part of the land and waters covered by the Nanda application, identified in the determination area.

The parties have also reached agreement about the land and waters in the Nanda application (Nanda Part B) which geographically overlaps with native title determinations concerning the Mullewa Wadjari Community (WAD6119 of 1998) and the Malagana people (WAD339 of 2018). The Nanda application claim excludes any land or waters already claimed by these native title holders. The Nanda #2 application was reduced to cover only Bully Pool and Wilgie Mia Pool, as these were considered of particular cultural significance to the Nanda People.

The pastoral lease respondents have reached an agreement about those portions of their pastoral leases situated within the determination area.

The judgement was especially notable to the Nanda People as they gained exclusive rights over important areas such as Bully and Wilgie Mia Pools.

Details of Judgement

The terms of the agreement between the parties are in accordance with ss 87A, 87,and 94A of the NTA, meaning that the Court can make a determination of native title in relation to the land and water of the determination area. The Court ordered that as far as the Nanda native title determination overlaps with other native title claims, it was dismissed. 

Related Entries

References

Glossary