Hobbs v State of Western Australia [2019] FCA 1255

The Kimberley Region

Registered with the National Native Title Tribunal on the Native Title Register 9 August 2019. 

Between: Hobbs (Applicant) and State of Western Australia (Respondent) 

Judge: Perry J

Determination

Native title exists in all of the determination area

It consists of exclusive native title rights and interests.

Native title holders

The Yi-Martuwarra Ngurrara People

Exclusive native title rights and interests over all of the determination area

This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule 3, to the exclusion of all others.

The native title rights exist in accordance with the laws of the State and the Commonwealth and are subject to the Petroleum and Geothermal Energy Resources Act 1967 (WA) [6]-[7]. 

Native title rights in relation to water are those as defined in the Rights in Water and Irrigation Act 1914 (WA) and is the right to take, use and enjoy water [8]. 

Other rights and interests in the determination area include:

• Those granted by the Crown or the State of Western Australia such as licences and permits 
• Those operating by reason of the law of the Commonwealth or State of Western Australia, including those under the Rights in Water and Irrigation Act 1914 (WA) 

See Schedule 5 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 Yanunijarra 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 Yi-Martuwarra Ngurrara People. 

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

Background

The application was filed on 19 July 2018 with the determination area comprising 5 areas of Crown land [14]. As the 5 areas overlapped with an exiting application, Yi-Martuwarra (Part B) WAD 25 of 2012, the parties submitted to have that application dismissed once the Ngurrara D1 determination was made to which the Court agreed [15]. This application was the sixth consent determination made over Ngurrara country [4]. 

Details of Judgment

The Court was satisfied in making the determination under section 87 of the Native Title Act 1993 (Cth) as both parties had been legally represented, the state had played and active role in negotiations and were satisfied that connection with land had been maintained, as well as conducting registries of other possible interests in the determination area [34]. 

Both parties and the Court accepted that the Ngurrara people shared a cultural identity and observed a set of customs and traditions and that through their ongoing observance of such customs that a continued connection to the land had been maintained [18-21]. 

The Court was satisfied that the requirements under the Native Title Act 1993 (Cth) had been met and that the the consent determination was appropriate [7]. Justice Perry noted that 'there are many elders of the Ngurrara people who have not lived to see this and earlier consent determinations made, although their contribution to the recognition of the Ngurrara's people native title rights and in their country under the NTA should be acknowledged and remembered' [5]. 

Native title in exists in the entire determination area.

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