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Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v State of Western Australia [2019] FCA 508

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 16 April 2019
Sub Category:Consent Determination (Native Title Act)
Place:Gascoyne Region 
State/Country:Western Australia, Australia

The determination area covers approximately 6,804 kilometres of land and waters predominantly covered by pastoral stations. It is bounded by the Gnulli native title claim in the south and southwest, and the Jurruru determination areas in the east. For a detailed description of the area and maps see Schedules B and C of the determination, attached below under documents. The area is within the jurisdiction of the

Legal Status:

Registered on the National Native Title Register.

Legal Reference: FCA file no.: WAD464/2016; NNTT file no.: WCD2019/003
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2019/508.html?context=1;query=Eagles%20on%20behalf%20of%20the%20Combined%20Thiin-Mah;mask_path=au/cases/cth/FCA
Summary Information:

Between: Herbert Eagles and Others on behalf of the combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli people (Applicant) and the State of Western Australia and Others (Respondents)

Judge: Murphy J 

Determination

Native title exists in parts of the determination area 

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

Native title holders

Native title is held by the descendants of the people who belonged to the Thiin-Mah, Warriyangka, Tharrkari and Jiwarli (TMWTJ) language groups, or who are adopted by those biological descendants under traditional law and custom. The native title holders identify and are accepted as TMWTJ group members and have a continuing traditional connection to the land and waters.  

For details of the particular TMWTJ ancestors see Schedule 5 of the determination via the URL above.

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

These rights and interests exist over the area described in the Extract and include:

  • access the land and waters;
  • enter and remain on the land, camp, erect shelters and light fires for cooking, heating and lighting purposes;
  • take flora, fauna, fish and other traditional resources (excluding minerals) from the land and waters;
  • take and use water, but excludes the right to take water controlled by holders of the Pastoral Leases;
  • engage in ritual and ceremony;
  • care for, maintain and protect areas of cultural significance;
  • be accompanied on the determination area by spouses, parents or descendants, even though tey are not native title holders.

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

  • in relation to the De Grey Mullewa Stock Route;
  • under Pastoral Leases  - the Kooline, Wanna, Edmund, Ullawarra, Mt Augustus, Eudamullah, Minnie Creek, Mangaroon, Wyloo, Maroonah, Glen Florrie, and Williambury;
  • by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister under the Dampier to Bunbury Pipeline Act 1997 (WA);
  • under certain mining tenements under the Mining Act 1904 (WA)(repealed and the Mining Act 1978 (WA);
  • under a petroleum exploration permit and a pipeline licence granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) or the Petroleum Pipelines Act 1969 (WA);
  • by Telstra Corporation Limited.

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

See the Extract for further information about the non-native title rights and interests.

The Woodgoomungooh 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 Thiin-Mah, Warriyangka, Tharrkari and Jiwarli people.

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

Detailed Information:

Details of Judgment

The TMWTJ application follows a previous determination in favour of the same native title claim group (Thudgari People v State of Western Australia [2009] FCA 1334) (Thudgari) [6]. Previously referred to as the Thudgari People, the claim group now wish to be referred to as the TMWTJ people [6].

The TMWTJ application makes a claim to native title over land adjacent to the Thudgari claim area which had at that time been subject to neighbouring native title claims but that have since been withdrawn [7].

According to anthropological evidence, at the time of settlement, the four TMWTJ language groups were distinct but so socially and culturally close that they were almost indistinguishable [26]. The Thudgari claim used the Thhhkari group's name as its market but individual claimants continue to self-identify by reference to their specific language group [27].

The TMWTJ people have maintained a physical presence and spiritual connection to the land since settlement largely due to their being absorbed into the pastoral workforce during the 1850s and 1860s [34]. After the pastoral downturn in the 21st century, some of the people were displaced but a core of people continue to live in the area and  TMWTJ people continue to visit the claim area [35].

The Court Notes include the statement that each of the pastoralist respondents negotiated agreements that are to be executed and applied for registration as Indigenous land use agreements (ILUAs). These ILUAs were later registered as the:

  • Minnie Creek and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli ILUA;
  • Williambury and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli ILUA;
  • Mt. Augustus and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli ILUA;
  • Kooline and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli ILUA; and
  • Glen Florrie and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli ILUA.

Through negotiation, the parties reached an agreement in regards to native title on the determination area. The Thiin-Mah, Warriyangka, Tharrkari and Jiwarli people hold native title rights. The parties' agreement was coherent with s 87 of the Native Title Act 1993 (Cth) and the Court was satisfied that a legitimate agreement had been reached, and was able to make the determination.

Outcomes:

Native title exists in parts of the determination area 


Related Entries

Agreement
  • Minnie Creek and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli Indigenous Land Use Agreement (ILUA)
  • Williambury and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli Indigenous Land Use Agreement (ILUA)
  • Mt. Augustus and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli Indigenous Land Use Agreement (ILUA)
  • Kooline and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli Indigenous Land Use Agreement (ILUA)
  • Glen Florrie and Combined Thiin-Mah, Warriyangka, Tharrkari, Jiwarli Indigenous Land Use Agreement (ILUA)
  • Thudgari People v State of Western Australia [2009] FCA 1334 (18 November 2009)
  • Organisation
  • Woodgoomungooh Aboriginal Corporation RNTBC
  • National Native Title Tribunal
  • Telstra Corporation Limited
  • State of Western Australia - Respondent
  • Shire of Ashburton - Respondent
  • Upper Gascoyne Shire - Respondent
  • Shire of Carnarvon - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Mining Act 1904 (WA)
  • Dampier to Bunbury Pipeline Act 1997 (WA)

  • Documents

    Document
    Extract from the National Native Title Registrar for WCD2019/003 as at 15/09/2022 (Combined Thiin-Mah, Warriyangka, Tharkari and Jiwarli People) - ( PDF | PDF | PDF)

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