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Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia [2016] FCA 910

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 18 August 2016
Sub Category:Consent Determination (Native Title Act)
Place:


State/Country:Western Australia, Australia
The determination area is located in the Central Desert of the Pilbara Region, in the centre of the Great Sandy Desert. For a detailed description of the area and maps see Schedule Two of the determination, attached below under documents. The area is within the jurisdiction of the Shires of East Pilbara and Halls Creek.
Legal Status:

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

Legal Reference: Federal Court file no.: WAD410/2012, WAD326/2015; National Native Title Tribunal file no.: WCD2016/003
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/910.html?context=1;query=helicopter%20on%20behalf;mask_path=
Summary Information:

Between: 

Helicopter Tjungarrayi, Richard Yugumbarri, Frances Nangui, Rita Minga, Eugene Laurel, Darren Farmer, Sandra Brooking, Jane Bieundurry and 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)

Between: 

Bobby 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) 

(WAD 326 of 2015) 

Judge: Barker J

Determination

Native title exists in the entire the determination area 

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

Native title holders

The native title holders are the people 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 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 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.

Detailed Information:

Background

On 21 December 2012, Helicopter Tjungarrayi and others filed an application for native title over the determination area. On 30 June 2015 Bobby West and Joshua Booth filed a second application that entirely overlapped the first application claim area, seeking the benefit of section 47B of the Native Title Act 1993 (Cth) (NTA) to disregard any prior extinguishment of native title [3].

On 10 December 2015, the Attorney-General of the Commonwealth of Australia intervened in both applications regarding two petroleum exploration permits that had been granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) in the determination area [5]. 

The Court ordered the applications be separated into Part A and Part B areas, with a further hearing regarding s 47B's application to Part B, that being the area covered by the permits. This was to be heard in Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587.

Details of Judgment

Evidence was provided by the Applicants to the State in support of the Claimant's connection to the determination area [14]. Both parties subsequently consented to this determination of native title being made, pursuant to section sections 87A and 94A of the NTA[10]. Barker J was therefore satisfied that it was appropriate to make an order recognising the claimant's native title over Part A of the determination area [25].

Outcomes:

Native title exists in the entire determination area.


Related Entries

Organisation
  • Central Desert Native Title Services Ltd - Respondent
  • Shire of Halls Creek - Respondent
  • State of Western Australia - Respondent
  • Ngurra Kayanta Aboriginal Corporation RNTBC
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA) - Requirement
  • People
  • Attorney-General of the Commonwealth of Australia - Intervener
  • Helicopter Tjungarrayi, Richard Yugumbarri, Frances Nangui, Rita Minga, Eugene Laurel, Darren Farmer, Sandra Brooking, Jane Bieundurry, Bartholomew Baadjo - Applicant
  • Bobby West and Joshua Booth - Applicant
  • Case Law
  • Helicopter Tjungarrayi on Behalf of Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938

  • Glossary

    Native Title (Australia) | Applicant | National Native Title Tribunal (NNTT) (Australia) | Native Title Determination (Australia)

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