BP (Deceased) and Others v State of Western Australia [2013] FCA 760

Central Desert Region

The determination area comprises two parcels of unallocated Crown land covering approx. 5,615 sq km. For a description of the area see the attached Extract from the National Native Title Register and Schedule 4 (maps).

Registered on the National Native Title Register

Between: BP (Deceased) and Others (Applicant) and State of Western Australia (Respondent)

Judge: Jagot J.

Determination

This determination concerns the area omitted from the Wiluna and Tarlpa determinations to await the Court's decision on a question of law relating to the area.

The Court published the reasons for that judgment on 15 July 2013 (see URL link above), finding that s 47B(2) of the Native Title Act 1993 (Cth) (the NTA) applied to disregard the effect of the grants of previous pastoral leases.

The parties then filed agreed proposed orders accordingly, and on 3 September 2013 the Court determined as follows.

Native title exists in the entire determination area

It consists of exclusive native title rights and interests.

Native title holders

Native title is held by the Wiluna People.

See the National Native Title Register Extract (attached below) for more detailed information.

Exclusive native title exists over the entire determination area

The native title holders have possession, occupation, use, and enjoyment of the entire determination area to the exclusion of all others.

These rights and interests are exercisable in accordance with traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Other (non-native title) rights and interests in the determination area include those held:

• under several mining exploration licences;
• by reason of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA);
• by the public, State, and Commonwealth to access and use roads; and
• waterways, stock routes, or areas that were public places at the end of 31 December 1993 (so far as confirmed under section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).)

See the Extract (Schedule 3) for further information about the non-native title rights and interests.

* In the case of conflict, the exercise of the non-native title rights and interests will prevail over the native title rights and interests.*

Prescribed body corporate

The native title is not held in trust.

The Tarlka Matuwa Piarku Aboriginal Corporation performs the functions required under the Native Title Act 1993 (Cth) on behalf of the native title holders.

The Extract from the National Native Title Register is attached below under documents.

Background

The claim area was unallocated Crown land that had previously been subject to the Earaheedy and the Lorna Glen pastoral leases. The State argued that, pursuant to s 47B(5)(b) of the NTA, the area was subject to a resumption process so that the extinguishing effects of the grants of the pastoral leases were not to be disregarded under s 47B(2) of the NTA.

Details of Judgment

Justice Jagot held that at the date the application was made on 28 October 2004 (the test date), the Crown did not have a clear (bone fide) intention of using the land for public purposes, or for a particular purpose, as required under 47B(1)(B)(ii) to disregard the extinguishing effects of the pastoral leases.

Her Honour resolved four matters to arrive at the outcome:

1. the existing use of the land did not show an intention to use it for conservation and recreation purposes in the future;
2. the State Cabinet decisions did not show the necessary intention;
3. there was an unconcluded debate within government which was not simply about the tenure on which the land was to be held but concerned the future use of the land;
4. the Crown did not intend to use the land for conservation and recreational purposes unless the native title holders agreed, and they did not agree.

Appeal

The State of Western Australia's appeal of this decision was dismissed by the Full Bench in State of Western Australia v BP (Deceased) [2014] FCAFC 95 (1 August 2014). Justice Jagot's decision stands.

This Wiluna #2 determination took effect on 23 January 2015.

Native title exists in the entire determination area.

Related Entries

Documents

Glossary