Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388

Central Desert Region

Registered on the National Native Title Register

Between: Kado Muir, Harvey Murray, Luke George, Troy Chapman, Roslyn Narrier, Ivan Wongawol, Sandra Evans and Vanessa Thomas (Applicant) and State of Western Australia, Shire of Laverton, Central Desert Native title Services Ltd, and Gold Road (North Yamarna) Pty Ltd (Respondents) and Attorney-General of the Commonwealth of Australia (Intervener)

Judge: Charlesworth J

Determination

The Federal Court made this consent determination of native title under s 87 of the Native Title Act 1993 (Cth) (the NTA) consistent with the terms jointly proposed by the parties.

Native title exists in the entire determination area 

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

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

Native title holders

Native title is held by the Manta Rirrtinya People

Exclusive native title exists over those parts of the determination area described in Schedule 3 and shown on the map in Schedule 6.

This is the right to possession, occupation, use, and enjoyment of those parts to the exclusion of all others.

Non-exclusive native title exists over all parts of the determination area other than those referred to in Schedule 3.

These native title rights and interests include the right to:

• access, remain in, and use that part;
• access, take and use the resources for any purpose;
• engage in spiritual and cultural activities; and
• maintain and protect places, areas, and objects of significance.

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

• the General Purpose Lease between the Minister of Lands and the Aboriginal Lands Trust (s 47A of the NTA applies to this area so that at the end of the lease period native title will revive);
• the Prenti Downs Pastoral Lease;
• several exploration licences granted under the Mining Act 1978 (WA).

See Schedule 4 (attached below) 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 Wakamurra Aboriginal Corporation holds the native title in trust and performs the functions required under the Native Title Act 1993 (Cth) on behalf of the [INSERT THE NAME OF THE NATIVE TITLE HOLDERS].

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

Background

On 15 September 2017, the applicant applied for native title over this area, largely covered by unclaimed Crown lands (UCLs). The applicant asserted that s 47B of the NTA applied to disregard any extinguishment of native title despite the UCLs having been subject to exploration licences.

The applicant's assertion was unfeasible at this time due to current law being that exploration licences were interpreted as 'leases' within the meaning of s 47B and meaning that extinguished native title could not be disregarded (BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8; Attorney-General v Helicopter Tjunarrayi (Ngurra Kayanta and Ngurra Kayanta #2) [2018] FCAFC 35).

However, given the High Court was in the process of considering an appeal of Tjiwarl and Tjiwarl #2 and Ngurra Kayanta and Ngurra Kayanta #2, the parties agreed upon the terms of this determination with an option for it to be varied with respect to the UCLs in the event that the High Court decided that an exploration licence, or exploration permits, are not a 'lease' for the purposes of s 47B of the NTA and do not prevent the disregarding of native title extinguishment under s 47B(2) of the NTA.

On 17 April 2019, the High Court decided that an exploration licence is not a lease within the meaning of s 47B, and on 28 May 2019, the Wakamurru Aboriginal Corporation applied to vary this determination.

Then, on 24 April 2020, the Court varied this determination to reflect the outcome of the High Court's decision in Tjungarrayi v Western Australia [2019] HCA 12 with the effect that s 47B of the NTA applies in relation to all the areas of unclaimed Crown Land.

Details of Judgment

The claim group are members of the broader society known as the Western Central Desert Bloc and some of them hold native title in at least one of four surrounding areas [27].

Justice Charlesworth was satisfied that the State had acted appropriately in assessing whether there was a credible basis for the claim and congratulated the parties for the conciliatory and efficient way in which they had progressed this application [31],[33].

Overall, Charlesworth J was satisfied that all the requirements of s 87 of the NTA had been met in order to make this determination [32].

Native title exists in the entire determination area

Related Entries

Documents

Glossary