Taylor v State of Western Australia (No 2) [2017] FCA 1255

East Pilbara Region

Registered with the National Native Title Tribunal on the Native Title Register.

WAD 293 of 2005

Between: Muuki Taylor, Waka Taylor, Donald Moko, Janice Bullen (Applicants) and State of Western Australia, Yamatji Marlpa Aboriginal Corporation (Respondents) and Attorney-General of the Commonwealth of Australia (Intervener)

WAD 720 of 2015

Between: Muuki Taylor, Waka Taylor, Daniel Walbidi, Meridoo Walbidi, Corina Jadai, Simon Frank (Applicants) and State of Western Australia, Yamatji Marlpa Aboriginal Corporation (Respondents) and Attorney-General of the Commonwealth of Australia (Intervener)

Judge: McKerracher J

Determination

Native title exists in the entire determination area

It consists of exclusive title rights and interests.

Native title holders

The native title holders are those persons who, in accordance with traditional laws and customs, have native title rights and interests in the determination area, including the descendants of Japurtujukkur, Walparti, Kulurnanyuta/Tommy Gardiner, Kupa Kupa, Junamuya/Jimmy Gardiner, Jutuparni, Ngartiwarta and Mukuly Mukuly. See Schedule 3 of the determination for more information.

Exclusive native title rights and interests over the entire determination area

Subject to the 'other rights and interests' listed in Schedule Four of the determination and included below, this is the right to possession, occupation, use, and enjoyment of the whole determination area to the exclusion of all others. 

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

• minerals as defined in the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1936 (WA); or 
• geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1936 (WA), except the right to take and use ochre.

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

These rights exist over the area described in Schedule One of the determination and include:

• those rights and interests exercisable in accordance with valid laws including those in relation to any watercourse, wetland or underground water source defined in Rights in Water and Irrigation Act 1914 (WA).

Other rights and interests in the determination area include:

• those from held under grants from the Crown, pursuant to statute or otherwise in the exercise of executive power or otherwise conferred by statute; 
• those held by valid laws, including those held by reason of the Rights in Water and Irrigation Act 1914 (WA);
• access to the determination area by an employee, agent or instrumentality of the State, Commonwealth or any local Government authority as required in the performance of their statutory or common law duties; and
• any existing public access to and enjoyment of waterways and their surrounds that were public places at the end of 31 December 1993. 

See Schedule 4 of the determination 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 rights and interests

The Kulyakartu 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 native title holders.

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

Background

On 2 September 2016, Barker J ordered the separation of the two native title determination applications, WAD 293/2005 (Part A) and WAD 720/2015 (Part B) (known collectively as the Kulurnanyuta applications) because Part B was subject to a petroleum exploration permit.

In October 2016, a determination of native title was made in relation to Part A in Taylor v State of Western Australia [2016] FCA 1191.

It was then agreed that no determination would be made in relation to Part B, pending the outcome of Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (Ngurra Kayanta #2) [3].

The litigation in Ngurra Kayanta #2 concerned the existence of petroleum exploration permits in the determination area granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (PHERA). In March 2017, in that case, Barker J held that s 47B of the Native Title Act 1993 (Cth) (NTA) applied to disregard prior extinguishment over areas covered by exploration permits granted under the PGERA.

However, the Commonwealth Attorney-General, as an Intervener, filed an appeal in respect of Ngurra Kayanta #2, contending that Barker J had erred in his findings and that there was still legal uncertainty about the application of section 47B of the NTA [6].

Details of Judgment

Justice McKerracher noted that there were no other disputes between the parties in relation to Part B of the Kulurnanyuta applications, apart from the issue with the petroleum permit and the pending appeals by the Commonwealth Attorney-General and the State of Western Australia of Ngurra Kayanta #2.

The State consented to a determination in this case (Kulyakartu Part B) reflecting the law as per Barker J's decision in Ngurra Kayanta #2 [8].

The parties reached an agreement with the condition that following the review of Justice Barker's decision, the Commonwealth Attorney-General may seek a variation of this proposed determination.

McKerracher J then made orders for a determination in the proposed terms to take effect when a body corporate was established to manage the native title holders' rights and interests.

On 16 April 2018, the Kulyakartu Aboriginal Corporation RNTBC became the registered body corporate and the determination took effect six months after the determination was made. 

Native title exists in the entire determination area.

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