Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938

Central Desert Region, Pilbara

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

Between: 

(WAD 410 of 2012):

Helicopter Tjungarrayi, Richard Yugumbarri, Frances Nanguri, Rita Minga, Eugene Laurel, Darren Farmer, Sandra Brooking, Jane Bieundurry, Bartholomew Baadjo (Applicant)

State of Western Australia, Shire of Halls Creek and Central Desert Native Title Services Ltd (Respondents)

Attorney-General of the Commonwealth of Australia (Intervener)

(WAD 410 of 2012):

Joshua West and Joshua Booth (Applicant)

State of Western Australia, Shire of Halls Creek and Central Desert Native Title Services Ltd (Respondents)

Attorney-General of the Commonwealth of Australia (Intervener)

Judge: Barker J

Determination

Native title exists in the entire determination area 

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

Native title holders

Those persons who hold native title rights and interests in all or part of the determination area according to traditional law and custom through: 

• being born on the determination area;
• birth of an ancestor on the determination area;
• having religious, sacred, ritual, practise and/or historical knowledge/authority of the determination area;
• having one's conception site on the determination area;
• having burial sites of ancestors on the determination area;
• having a long traditional association with the determination through occupation, custodianship or use by one's self and/or relevant kin; or 
• asserting connection with the determination area that is accepted by others.

This includes Mukti Taylor, Wakka Taylor, and those people who are recognised under the relevant traditional laws and customs by the other native title holders as having rights in the determination area and who are the descendants of: 

• the siblings Walparpakanu and Tjinatjunku, Tjukul, Old Mosquito, Wurtajeri, Puyoga, Nakinya, Jinny James and Jimmy Wirili James, Loa Loa and Tjatjiba, Nyirlpirr and Nindiya, Piinyuka, the siblings Tjiltjikurta, Tjinaminayi and Yawartajungka, Wilkirbayi and Mamarka, Nyalali Napanangka, Lili/Ikupani Tjapanangka, Rosie Nanyuma, the siblings Papalya, Nyarnu and Wartungka, the siblings Winurru, Kurtakara, Ngayulan, Walalpayi, Tjatatji and Wayul, Tjipumaru Tjupurrula and Tjupantjarri Napanangka, Kalpurta Tjakamarra, the siblings Putanangarri Tjapaltjarri, Tjinapilpa Tjapaltjarri, Mantjarlin Tjapaltjarri and Parrkula Tjapaltjarri, Mamutja Tjapanangka, Talitjarra/Charlie Watson, Piyakurna, Jujula, Pudji/Puji/Puju, Kurtajiji Wilberforce, Tjaparli/Tjapurti, the siblings Wapiltjukur, Kulapurta and Tjarrpayi and the siblings Ruby Button and Katararpa.

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

This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule One, to the exclusion of all others, subject to 'other rights and interests' as listed below.

Other rights and interests in the determination area include:

• those 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 Four 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 Ngurra Kayanta 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 21 December 2012, the applicants filed for native title recognition. On 10 December 2015, the Attorney-General of the Commonwealth of Australia intervened regarding the application of s 47B of the Native Title Act 1993 (Cth) (NTA) to parts of the determination area covered by petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (PGERA).

On 10 August 2016, before Helicopter Tjungarrayi on behalf of Ngurra Kayanta People v State of Western Australia [2016] FCA 910 (Ngurra Kayanta) was determined, the original Ngurra Kayanta application was split into two parts (Parts A and B). The parties agreed that no determination should be made in relation to the Part B area until the effect of the petroleum exploration permits was resolved.

Barker J addressed that question in Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 (Ngurra Kayanta #2), holding that the permits did not effect the application of s 47B of the NTA. The applicant subsequently filed a 'Minute of Proposed Orders and Determination of Native Title', noting that all matters in controversy between the parties have been resolved and the Court could now proceed to determine the native title claim in accordance with the NTA [19]. 

Details of Judgment

Having regard to the earlier Ngurra Kayanta determination over the Part A area, and to Ngurra Kayanta #2 which decided that the petroleum exploration permits were not leases within the meaning of the NTA, Baker J was satisfied that this determination of native title should be made. 

Native title exists in the entire determination area.

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