Hobbs on behalf of the Ngurrara D2 Claim Group v State of Western Australia [2020] FCA 624

East of Edgar Range

Registered with the National Native Title Tribunal.

Between: Malachy Hobbs, Hector Hobbs, Winawarl Cynthia, Mervyn Numbagardie, Richard Pindan, Tony Yanawana, Harry Yungabun, Percy Bulagardie, James Yanawana, Victor Woia and Helen Thomas (Applicants)

and State of Western Australia (Respondents)

Judge: Colvin J

Determination

Native title exists in the entire determination area

The determination area is the unallocated Crown land parcel as shown in Schedule 2 being all those lands and waters commencing at the northernmost northwestern corner of the northwestern severance of Native Title Determination WAD327/2018 Ngurrara D1 (WCD2019/009) and extending southerly and westerly along the western and northern boundaries of that native title determination to an intersection with an internal boundary of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WCD2007/005), then northerly and easterly along the internal boundaries of that determination back to the commencement point.

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

The native title in the determination area is held by the Ngurrara people. The native title holders are those Aboriginal people who hold in common the body of traditional laws and customs concerning the claim area. Those people are:

• the biological descendants of apical ancestors. (See Schedule 4 for a full list of the apical ancestors)
• are acknowledged by the native title claimants above as having rights and interests in the claim area through a direct relationship by birth/finding and growing up in places ('Ngurrara') within the application area.

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

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

There are no native title rights and interests in the determination area in or in relation to minerals as defined in the Mining Act 1904 (WA)(repealed) and the Mining Act 1978 (WA); or petroleum as defined in the Petroleum Act 1936 (WA)(repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

Native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth, including the common law; and the traditional laws and customs of the Ngurrara people.

Non-exclusive native title right to take, use and enjoy the water that exists over all or part of the determination area where the nature and extent of native title rights are in relation to water in any watercourse, wetland,or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination.

Other rights and interests in the determination area include:

• Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA).
• Rights and interests, including licenses and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation.
• Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).
• The right to access land by an employee or agent or instrumentality of the State, the Commonwealth or any local Government authority as required in performance of his or her statutory or common law duties where such access would be permitted to private land.

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 Yanuijarra 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 acts as an agent for the Ngurrara people.

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

Background

The native title in relation to the determination area was considered to be extinguished due to the existence of a mining tenement over the determination area pursuant to s 47B of the Native Title Act 1993 (Cth) [3]. The reasoning that supported this view was found to be in error by the High Court in Tjungarrayi v Western Australia; KN (deceased) (Tjiwarl and Tjiwarl # 2) v Western Australia [2019] HCA 12 and the present claim was advanced [3]. 

Ngurrara means home or country, and the 'home' country of the native title claimants extends from the Percival Lakes region in the south and north to the Fitzroy River and Cunninghame River, including Alexander Island and adjacent sand hill country, which is an area in excess of 100,000 square kilometres [7]. The distinctive feature of the land of Ngurrara people are jila (permanent waterholes) and jilji (sand hills), some of which are associated with ancestral figures. [2]

Details of Judgment

The Court was provided with a summary of materials by joint submissions from the appellant and the State of Western Australia which showed a connection of the Ngurrara people to the determination area [6]. The summary reflected on the anthropological reports by Dr. Vachon [6]. The Court found that Ngurrara people have maintained their connection to Ngurrara country since the assertion of British sovereignty over the determination area [18]. The last members of the native claim group walked out of the desert in the late 1960s, the Court identified the memory and lived experience of claim group members alive today about the way of life in accordance with the traditions of the Ngurrara people. [18]

The Court was provided with a summary of materials by joint submissions from the appellant and the State of Western Australia which showed a connection of the Ngurrara people to the determination area [6]. The summary reflected on the anthropological reports by Dr. Vachon. [6] The Court found that Ngurrara people have maintained their connection to Ngurrara country since the assertion of sovereignty over the determination area. [18] The last members of the native claim group walked out of the desert in the late 1960s, the Court identified the memory and lived experience of claim group members alive today about the way of life in accordance with the traditions of the Ngurrara people [18].

The Court found that the determination has an intergenerational factor which affects a broader public interest, as the determination may affect third parties who do not presently have interest in the area [24]. The Court relied upon the investigations undertaken by the parties, the process of claim registration and the steps taken by the State to identify all possible interested parties [26]. Based on the searches conducted by the State to identify the nature and extent of other interests to meet the requirements under s 225 of the Native Title Act 1993 (Cth), the Court was satisfied that relevant interests have been considered in the determination and there is no indication to suggest that concerns of broader public interest have not been accounted for [26], [28]. 

Prior to the determination, consent of the Yanunijarra Aboriginal Corporation, the prescribed body corporate, to hold the native title in trust for native title holders was not yet appointed [30]. The consent could not be obtained due to public health measures in place at the time which restricted travel [30]. The Court allowed six months to obtain the relevant approval and the determination will not take effect unless and until a prescribed body corporate has been appointed [31]. 

Native exists in the entire determination area.

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